# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 27, 2008

Decided July 31, 2008

Before

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 07

‐ 1987

UNITED STATES OF AMERICA, Appeal from the United States

District Court for the Eastern

District of Wisconsin,

Plaintiff

‐ Appellee,

v. No. 06 CR 255

NORMA R. SMITH, Rudolph T. Randa,

Chief Judge.

Defendant

‐ Appellant.

ORDER

Norma R. Smith pled guilty to one count of mail fraud, in violation of 18 U.S.C. §

1341. Neither Smith nor the government objected to the Pre

‐ Sentence Investigation

Report’s (“PSR”) recommended guidelines range of 21 to 27 months’ imprisonment,

and the district court adopted this recommendation as the appropriate range. The court

sentenced Smith to 27 months, the top of the range and Smith appeals. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 1987 Page 2

Smith was the representative payee for Social Security disability benefits for two

of her children. On more than two dozen occasions, Smith falsely reported to the Social

Security Administration (“SSA”) that she had not received benefit checks for her

beneficiaries. Each time, the SSA mailed Smith a replacement check. Each time, Smith

cashed both the original and the replacement checks, receiving twice the benefits due.

She was charged with five counts of mail fraud and one count of making false

statements. She pled guilty to one of the mail fraud counts and the government moved

to dismiss the remaining counts. The PSR detailed Smith’s rather extensive criminal

history. Smith had multiple convictions for, among other things, retail theft, issuing

worthless checks, resisting or obstructing an officer, and identity theft. Smith’s crimes

spanned the State of Wisconsin and seemed to be limited only by the availability of

interstate roads in proximity to her targets. Although her first conviction occurred in

1988 when she was twenty

‐ one years old, it was not until 1996 that she apparently hit

her stride, with convictions accumulating rapidly from the age of twenty

‐ nine onward.

All in all, she accumulated twenty

‐ five criminal history points, twelve more than were

needed to place her in Criminal History Category VI, the highest category a person may

achieve under the guidelines.

In sentencing Smith, the court noted that there were no objections to the

guidelines calculation and commented that the court ʺ has to take the factors in 3553 to

decide or determine whether or not there is a basis for departing either upward or

downward from those guidelines. ʺ Sent. Tr. at 3. The government argued for a

sentence at the top of the range, in light of Smith ʹ s extensive criminal history. Defense

counsel argued for a sentence at the bottom of the guideline range, asking that the term

run concurrently with a sentence Smith was serving in the state penitentiary for fraud.

In sentencing Smith, the court made several comments that are relevant to the appeal

and so we repeat them here. First the court commented on the guidelines:

As indicated, the Court has to consider the sentencing guidelines. It has done so.

The sentencing guidelines are considered, if the Court sentences within the

guidelines range, presumptively reasonable. The Court has found no reason to

disagree with the range of sentence established by the sentencing guidelines. But

it also, having done that, has to look at the factors under 3553, which asks the

Court to impose a sentence not more than necessary to achieve the objectives of

this Section.

Sent. Tr. at 13

‐ 14. After noting the factors it was obliged to consider under section

3553(a), the court continued:No. 07

‐ 1987 Page 3

And in looking at the characteristics here, and the factors here, the Court can go

up above the guidelines or below the guidelines now, as long as its sentence is

reasonable.

Sent. Tr. at 14. The court commented on the extensive nature of Smith ʹ s criminal

history, accumulating nearly twice the number of points needed to reach criminal

history category VI. The court noted that Smith has not been deterred in the past by the

ʺ minimal sentences ʺ she had received for other crimes, and that she had no significant

work history. The court also observed that Smith had some supportive family

members, had suffered abuse at the hands of her life partners, and took care of two of

her adult, disabled children. The court then sentenced Smith to twenty

‐ seven months ʹ

imprisonment, the top of the range, to run consecutively to the state sentence she was

then serving. The court concluded:

And the Court would not be unreasonable and could fashion an analysis that, as

.

. . the Government has argued, go beyond what the sentencing guidelines call

for.

Sent. Tr. at 16

‐ 17.

Smith ʹ s attorney originally filed a motion to withdraw under Anders v. California

,

386 U.S. 738 (1967), because he could not discern a non

‐ frivolous ground on which to

appeal. We denied that motion in a November 20, 2007 Order, because we were

concerned that the district court, without the benefit of the Supreme Court ʹ s opinion in

Rita v. United States

, 127 S. Ct. 2456 (2007), may have applied a presumption of

reasonableness to the guidelines when sentencing Smith. In Rita, the Supreme Court

ruled that the presumption of reasonableness applied only on appellate review. 127 S.

Ct. at 2465. We asked Smith ʹ s counsel to brief whether the district court ʹ s statement that

the guidelines ʺ are considered, if the Court sentences within the guideline range,

presumptively reasonable, ʺ indicated an improper application of the presumption in the

district court. Counsel has done so, and has the thanks of the court for his vigorous

advocacy on behalf of his client.

Whether the district court followed the proper procedure in imposing a sentence

is a question of law that we review de novo

. United States v. Mendoza

, 510 F.3d 749, 754

(7th Cir. 2007). We note first that the district court’s statement, taken alone, is

ambiguous; although the court stated that the guidelines were “considered”

presumptively reasonable, it did not indicate whether the district court or the court ofNo. 07

‐ 1987 Page 4

appeals was doing the “considering.” In context, we believe the district court did not

apply the presumption in determining Smith’s sentence. Without the benefit of Rita

, the

court’s choice of words hinted of a greater deference to the guidelines than is

warranted. However, the court correctly recognized the breadth of its discretion to

sentence outside of the guidelines range, and adequately considered the section 3553(a)

factors at issue. The court acknowledged that it should not impose a sentence that was

greater than necessary to achieve the purposes of section 3553, regardless of whether

the sentence fell within the guidelines range. All of this was appropriate in the wake of

Rita and Gall v. United States

, 128 S. Ct. 586 (2007). The court focused heavily on the

extent of Smith’s criminal history and how she seemed impervious to more lenient

sentences. After considering the relevant section 3553(a) factors, the court then

dispensed as severe a sentence as was suggested by the guidelines range, imposing the

uppermost term and ordering the sentence to be served consecutively to the state

sentence. The court noted that it would not be unreasonable, in light of Smith’s criminal

history and in light of her recidivism in the face of lenient sentences, to go above the

guidelines range. Thus, to the extent the court thought itself constrained by a

presumption of reasonableness, the constraint ran in Smith’s favor.

Smith’s case is distinguishable from United States v. Schmitt

, 495 F.3d 860 (7th Cir.

2007). In Schmitt

, we vacated and remanded for re

‐ sentencing because the district

judge’s comments indicated that he felt “there was an outside constraint on his

discretion that he was not free to set aside.” 495 F.3d at 865. The judge gave the

guidelines considerable weight because Schmitt’s crime involved child pornography,

and the judge believed that Congress had “spoken in unmistakable terms” that

prevented him from deviating from the advisory guidelines.” Id

. We noted that it

would be unobjectionable “if the judge had said only that, in light of the discretion he

now possesses under Booker and Rita

, he was electing to impose a guideline sentence in

this particular case unless the defendant could persuade him otherwise.” Schmitt

, 495

F.3d at 865. Instead, the judge’s comments indicated that he “placed a ‘thumb on the

scale favoring a guideline sentence.’” Id

. (quoting United States v. Sachsenmaier

, 491 F.3d

680, 685 (7th Cir. 2007)). We have no similar concern here, where the judge’s comments

signaled an awareness of the scope of his discretion to sentence outside the guidelines.

None of the court’s language suggest that the court felt itself bound by the guideline

range. In effect, the judge here elected to impose a guideline sentence unless Smith

could persuade him otherwise. She failed to do so.

Smith also relies on the Sixth Circuit’s opinion in United States v. Wilms

, 495 F.3d

277 (6th Cir. 2007), and our decision in United States v. Ross

, 501 F.3d 851 (7th Cir. 2007),No. 07

‐ 1987 Page 5

but we find those cases distinguishable as well. In Wilms

, the district court required the

defendant to “overcome the presumption of reasonableness with respect to the

sentencing guidelines in this case.” 495 F.3d at 281. The Sixth Circuit commented that a

mere mention of the reasonableness standard or an acknowledgement by the district

court that the court of appeals will apply a presumption of reasonableness would not

render the sentencing procedure defective, but the district court had gone much farther

than that. 495 F.3d at 281. The district court itself applied the presumption, in violation

of the Supreme Court’s holding in Rita

. Similarly, in Ross

, the district court, without the

benefit of Rita

, assumed it was constrained by the guidelines unless the defendant

presented a “good reason” to go outside the range. 501 F.3d at 852

‐ 53. The district

court stated that even the lowest end of the guidelines range went farther than was

necessary to meet the goals of sentencing, but that Congress’s judgment took

precedence over the court’s judgment in fashioning an appropriate sentence. Id

. In

both of those cases, the courts’ comments clearly indicated that the courts felt cabined

by the guidelines and misapprehended the level of discretion they possessed to set an

appropriate sentence. We have no similar indication here. The mere mention of the

presumption of reasonableness did not, in context, indicate that the district court was

itself applying that presumption. And in Smith’s case, the court expressly

acknowledged its obligation to impose a sentence no greater than was necessary to

achieve the goals of section 3553.

The court’s comments at sentencing firmly indicate that the court followed

appropriate sentencing procedures. Even if the court had not strictly complied with

Rita and Gall

, a remand would be futile (or worse) for Smith. Smith argued for a

sentence at the low end of the guidelines; the government argued for a sentence near

the top; and the court hinted a willingness to go above the range. No one argued for a

sentence below the guidelines. Under Gall

, the guidelines “should be the starting point

and the initial benchmark” in setting a sentence. 128 S. Ct. at 596. The district court

must then make an “individualized assessment based on the facts presented.” Gall

, 128

S. Ct. at 597. Reading the record as a whole, we believe the court complied with Gall

.

Because the sentencing record makes clear that any misapprehension about the

presumption did not affect the court’s sentencing decision, we deny Smith’s request to

vacate her sentence and remand. See United States v. White

, 519 F.3d 342, 349 (7th Cir.

2008) (declining to remand to consider the guidelines disparity between crack and

powder cocaine where the district court clearly indicated it would impose the same

sentence in the absence of the guidelines); United States v. Dale

, 498 F.3d 604, 611 n.6 (7th

Cir. 2007) (finding no error where a court used pre

‐ Booker terminology in sentencing the

defendant because there was no reason to believe the use of that language made aNo. 07

‐ 1987 Page 6

substantive difference in setting the sentence). The judgment of the district court is

therefore AFFIRMED.

W ILLIAMS

, Circuit Judge, dissenting.

Because I would remand this case for resentencing, I respectfully dissent. After the

sentencing hearing in this case, the Supreme Court made clear in Rita v. United States

, 127

S. Ct. 2456, 2465 (2007), that the presumption of reasonableness applies only on appellate

review. And post

‐ Rita

, we have consistently remanded for resentencing when we were

concerned that the district court presumed a within

‐ guidelines sentence to be reasonable

or placed too much weight on the guidelines. See United States v. Griffin

, 493 F.3d 856, 868

(7th Cir. 2007); United States v. Ross

, 501 F.3d 851, 854 (7th Cir. 2007); United States v. Schmitt

,

495 F.3d 860, 865 (7th Cir. 2007); cf. United States v. Mendoza

, 510 F.3d 749, 754

‐ 55 (7th Cir.

2007). Following those cases, I would do the same here.

As the majority recounts, the district court stated at the sentencing hearing:

As indicated, the Court has to consider the sentencing guidelines. It has done so. The

sentencing guidelines are considered, if the Court sentences within the range, presumptively

reasonable

. The Court has found no reason to disagree with the range established by the

sentencing guidelines.

(Emphasis added.)

Viewed in context, I don’t take the statement in this case that the guidelines “are

considered” presumptively reasonable to be a comment on the appellate standard of

review. The district court had just stated that it had to consider the guidelines and that it

had done so, and it then stated after the “presumptively reasonable” statement that it

found no reason to disagree with the guidelines range. I don’t think there is any reason to

believe that the district court, out of the blue, would suddenly interject a comment about

the appellate standard of review in the middle of its own analysis of Smith’s case.

Moreover, the district court indicated at other points in the hearing that the role of theNo. 07

‐ 1987 Page 7

district court was to craft a “reasonable” sentence, further suggesting to me that when it

spoke of the presumption of reasonableness, it was referring to a district court

‐ level

presumption. See Sent. Tr. at 3, 14 (“And keeping in mind that any sentence that the Court

renders has to be reasonable

. . .”; “And in looking at the characteristics here, and the

factors, here, the Court can go up above the guidelines or below the guidelines now, as

long as its sentence is reasonable

. . . .”).

Because we now know that the district court could not apply a presumption of

reasonableness to a guidelines

‐ range sentence post

‐ Booker

, to me, it makes the most sense

to ask the district court what it would do absent the erroneous presumption. There is little

cost to doing so–the judge could still apply the same factors and arrive at the same

sentence, which we all agree is a reasonable one. But there is a definite gain to a remand:

we would ensure that Smith received a proper sentence under the correct law.

Moreover, although the district court surely knew that the guidelines range was

advisory given that the sentencing occurred more than two years after Booker

, that does not

imply that it did not apply a presumption of reasonableness to those guidelines. After all,

the sentencing hearing took place before the Supreme Court’s definitive pronouncement

in Rita, and our cases had not been entirely clear on the issue. See United States v.

Wachowiak

, 496 F.3d 744, 749 n.3 (7th Cir. 2007) (“To the extent some of our cases have

suggested that the appellate presumption of reasonableness for within

‐ guidelines sentences

also applies as a ‘benchmark’ or ‘presumption’ in the district court, United States v. Hankton

,

463 F.3d 626, 629 (7th Cir. 2006); United States v. Wurzinger

, 467 F.3d 649, 650

‐ 51 (7th Cir.

2006), that suggestion has been displaced by Rita .”). But that lack of clarity in our own case

law is just one more reason why, it seems to me, we cannot be sure that the district court

sentenced Smith without applying a presumption that a guidelines sentence was

reasonable.

And if the district court did apply a presumption of reasonableness, the presumption

only ran in Smith’s favor if the district court would have independently determined that

a range of 21 to 27 months was appropriate in this case. We do not know whether that was

the case here, and the only way for us to find out is to remand. Of course there is a danger

that upon remand Smith might receive a sentence higher than the one she initially received,

but that is a risk her counsel assured us that she is knowingly and willingly accepting. I

think the proper course is to remand this case to the district court.