In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1261 & 11-1602

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARLYN J. BARNES and MELVIN B. TAYLOR,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 06 CR 00023—Theresa L. Springmann, Judge.

ARGUED SEPTEMBER 27, 2011—DECIDED OCTOBER 25, 2011

Before FLAUM, KANNE, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Upon re-sentencing, a district

court judge respectively sentenced Marlyn Barnes and

Melvin Taylor to 292 months and 188 months of imprisonment for conspiring to possess with intent to distribute more than five kilograms of cocaine. In a successive appeal before this Court, Barnes and Taylor

challenge those sentences. They argue that, in light of

the Supreme Court’s recent decision in Pepper v. United
2 Nos. 11-1261 & 11-1602

Though not relevant to this appeal, a more extensive descrip- 1

tion of the facts underlying the conspiracy may be found at

United States v. Barnes, 602 F.3d 790, 792 (7th Cir. 2010)

and United States v. Taylor, 600 F.3d 863, 866-67 (7th Cir. 2010).

States, 131 S. Ct. 1229 (2011), the district court did not

properly entertain new arguments when it re-sentenced

them. They also advance that the district court abused

its discretion by re-sentencing them to the same

number of months to which it sentenced them originally.

Notably, these new sentences remain within Guideline

range.

We affirm the judgment of the district court.

I. Background

A. Factual Background1

Barnes and Taylor, with four other men, conspired to

steal a shipment of drugs from a stash house in Fort

Wayne, Indiana. They learned about their intended

target from a confidential informant for the government,

which had concocted the shipment and instructed its

informant to provide Barnes and Taylor with the

fictional details. In reality, no such shipment existed.

Unaware of the government’s involvement, Barnes and

Taylor persisted in their planning and, ultimately, procured the necessary equipment and weaponry to execute the theft. The government arrested them and their

associates on May 5, 2006, as they arrived at a storage

facility to pick up a van they intended to use in the heist.
Nos. 11-1261 & 11-1602 3

Upon searching the men and their vehicles, the government uncovered two bullet-resistant vests, a Keltec

automatic rifle, magazines and twenty-three rounds of

ammunition for the Keltec rifle, a stolen Norinco

assault rifle, a 75-round magazine and ninety-nine additional rounds of ammunition for the Norinco rifle, a

loaded nine-millimeter pistol, thirty-six rounds of ninemillimeter ammunition, a loaded .40-caliber pistol, fortysix rounds of .40-caliber ammunition, and three additional 12-round magazines.

B. Procedural Background

The government indicted Barnes, Taylor, and their

co-conspirators on May 24, 2006. It charged all six participants with conspiring to possess with intent to distribute

more than five kilograms of cocaine, 21 U.S.C. § 846. It

also charged Barnes and Taylor with possessing a

firearm in furtherance of a drug trafficking crime,

18 U.S.C. § 924(c).

Barnes, Taylor, and two of their co-conspirators proceeded to trial. The original proceeding resulted in a

mistrial because Barnes offered to testify on behalf of

Taylor and the other two co-conspirators. The district

court accordingly severed the defendants’ trials, at

which time the two remaining co-conspirators pled guilty.

Barnes and Taylor continued to trial. A jury convicted

Barnes on the conspiracy and gun counts. In a separate

trial, a jury convicted Taylor on both counts as well. In

each trial, the juries found by special verdict that the
4 Nos. 11-1261 & 11-1602

amount of drugs involved in the conspiracy exceeded

five kilograms of cocaine.

1. Sentencing and The First Appeal

As it sentenced Barnes and Taylor’s four co-conspirators, the district court found that the conspiracy

involved five-to-fifteen kilograms of cocaine. It, thus,

calculated their base offense levels at 32.

a. Barnes’ Proceedings

The initial pre-sentence report for Barnes similarly

recommended a base offense level of 32, treating the

conspiracy as involving five-to-fifteen kilograms of

drugs. However, the probation officer revised the

pre-sentence report to reflect a drug quantity of forty

kilograms. Barnes objected to this quantity.

The district court ordered further briefing on the drug

amount, but, rather than file additional materials,

Barnes and the government stipulated that the conspiracy involved five-to-fifteen kilograms.

At sentencing, the district court rejected this stipulation and found that the conspiracy involved forty kilograms of cocaine. This finding raised Barnes’ base

offense level to 34. The district court refused to accept

the stipulation because it viewed itself as unconstrained

by the factual findings in the co-conspirators’ sentencing proceedings. It wished to issue an independent

finding on the quantity of drugs for which Barnes was
Nos. 11-1261 & 11-1602 5

responsible. Yet, the district court also chose to sentence Barnes at the low end of his Guideline range

because, it reasoned, there was no reason to treat him

differently than his co-conspirators with regard to the

amount of drugs involved. Once his enhancements were

considered, the court sentenced Barnes to 292 months.

Barnes appealed, contesting the district court’s finding

that, for him, the conspiracy involved forty kilograms

of cocaine and not five-to-fifteen kilograms. This Court

agreed that such unjustified, disparate treatment among

co-conspirators was clear error. We vacated Barnes’

sentence and remanded to the district court for

re-sentencing.

b. Taylor’s Proceedings

Taylor’s pre-sentence report recommended that the

conspiracy involved forty kilograms of cocaine. Taylor

objected to this amount and suggested that the conspiracy involved five-to-fifteen kilograms. At sentencing, the district court overruled Taylor’s objection

and found that the amount of cocaine involved was

forty kilograms. It, therefore, calculated his base offense

level as 34. Enhancements raised his base offense level

to 36, resulting in an advisory Guideline range of 188 to

235 months of incarceration.

To minimize potentially unequal treatment of the

co-conspirators based upon drug quantity, the district

court sentenced Taylor to the low end of his Guideline

range. He received a 188-month sentence.
6 Nos. 11-1261 & 11-1602

Taylor appealed, alleging that the district court committed clear error when it determined that the amount

of cocaine attributable to the conspiracy was forty kilograms. This Court agreed, again viewing as unacceptable

the inconsistent factual finding on the amount of drugs

involved. As we did in Barnes’ case, we vacated Taylor’s

conviction and remanded his case for re-sentencing.

2. Re-Sentencing

Upon re-sentencing, the district court dismissed as

waived or beyond the scope of remand all new arguments raised by Barnes and Taylor.

a. The Scope of Remand for Barnes’ Re-Sentencing

In our opinion on Barnes’ first appeal, we addressed

only his argument that the lower court erred in rejecting

the parties’ stipulation that the conspiracy involved

five-to-fifteen kilograms of cocaine. United States v.

Barnes, 602 F.3d 790, 792, 796 (7th Cir. 2010) (“Barnes’s

argument focuses on the fact that his co-defendants who

pleaded guilty and were sentenced before him were

sentenced based on the finding that the conspiracy

only involved five-to-fifteen kilograms of cocaine.”). We

agreed with Barnes’ argument, holding that “[w]ithout any justification for why one co-conspirator is responsible for a greater quantity of drugs than his

fellow co-conspirators, such a discrepancy in factual

findings is clearly erroneous.” Id. at 796. We vacated

his sentence and generally remanded his case for
Nos. 11-1261 & 11-1602 7

re-sentencing. Id. at 797 (“[W]e vacate the district court’s

sentence of 292 months, and remand for re-sentencing.”).

On remand, the district court interpreted our

opinion as an order to “resolve the discrepancy in

factual findings” used when it sentenced Barnes. The

district court understood this discrepancy to be its

“incongruou[s] reject[ion] [of] the parties’ post-trial

joint stipulation that the conspiracy involved between 5

and 15 kilograms of cocaine . . . .” The district court

re-sentenced Barnes using the post-trial stipulation

to calculate his Guideline range. It sentenced Barnes

anew to 292 months of imprisonment for the conspiracy

count of the indictment.

b. Barnes’ Waived Arguments

At re-sentencing, the district court dismissed as waived

several new arguments Barnes raised in his post-remand

sentencing brief. Barnes asked the court to disregard the

parties’ stipulation that the conspiracy involved between

five-to-fifteen kilograms and, instead, treat the drug

quantity at issue as less than 25 grams. He felt the

larger drug quantity overstated his criminality. He additionally argued that, due to the fictitious nature of the

drugs and the government’s ability to dictate the

amount, the court should treat the amount of drugs

involved as zero grams or find that he could not have

completed the conspiracy. Finally, he requested that

the court reconsider his four-level enhancement

for being an organizer or leader of five or more

participants in the commission of an offense, as well
8 Nos. 11-1261 & 11-1602

as his two-level enhancement for willful obstruction

of justice.

The court rejected Barnes’ argument that the amount

of drugs involved should be considered less than the

amount to which his co-conspirators stipulated because “[the argument] d[id] not appear to have been . . .

raised on appeal, and the Court of Appeals did not explicitly discuss it.” The court also noted that even if

the argument were not waived, it “would not find it

to have any merit.”

The court similarly disregarded Barnes’ subsidiary

argument that he was incapable of producing any

drug amount. The court found that this argument, too,

“was not raised on appeal and [w]as outside the scope

of remand.” As before, the court elaborated that “had

the issue been properly raised, and remanded for [its]

determination, [it] would [have] reject[ed] it.”

With respect to his objection to its sentence enhancements, the district court held that Barnes “could have

appealed the application of these enhancements [during

his first appeal].” Since he did not do so, the court ruled

that he waived his arguments against them such that

“they d[id] not fall within the permissible areas of discussion . . . on remand.”

The district court excluded each of these arguments

as ones that could have been raised in his first appeal,

were not so raised, and, therefore, were beyond the

scope of this Court’s remand.
Nos. 11-1261 & 11-1602 9

c. The Scope of Remand for Taylor’s Re-Sentencing

As with Barnes, the only sentencing issue we confronted

on Taylor’s appeal was whether the district court erroneously calculated his Guideline range based upon forty

kilograms of cocaine. United States v. Taylor, 600 F.3d

863, 870-71 (7th Cir. 2010). We agreed with Taylor:

The district court . . . sentenced . . . four co-conspirators

on the finding that the conspiracy involved

five-to-fifteen kilograms of cocaine. Then, at the

sentencing hearings for Barnes and Taylor, the

district court found that the conspiracy involved

forty kilograms of cocaine. . . . [W]ithout a justification

for treating these co-defendants differently when

determining the amount of drugs attributable to

the conspiracy, it was clear error for the district

court to find one drug quantity for [the four

co-defendants], and a different drug quantity for

Taylor on an identical record.

Id. at 871-72. We vacated Taylor’s sentence and ordered

a general remand for re-sentencing. Id. at 872 (“We

vacate Taylor’s sentence and remand for re-sentencing.”).

The district court understood the remand order as instructions to re-sentence Taylor based on a drug

quantity consistent with that attributed to his

co-conspirators: “[t]he sufficiency of the factual support

for using forty kilograms to determine the base offense

level was not the issue that ultimately required remand.

Rather, it was . . . the sentencing of other co-conspirators

on the basis of factual stipulations for between five and

fifteen kilograms of cocaine.” Consequently, the court

recalculated Taylor’s Guideline range using five-to-fifteen
10 Nos. 11-1261 & 11-1602

kilograms as the pertinent drug quantity. It re-sentenced

him to 188 months in prison for the conspiracy count of

the indictment.

d. Taylor’s Waived Arguments

In his post-remand re-sentencing brief, Taylor raised

new arguments that the district court dismissed as

waived. He asked that the court sentence him based on

a drug quantity of 25 grams or fewer or, alternately, of

two to three-and-a-half kilograms. He argued that these

reduced amounts were appropriate given the fictitious

nature of the drugs involved, the government’s control

over the amount of drugs in the fake shipment, and

his smaller role in the conspiracy.

As an initial matter, the district court rejected these

arguments because they “d[id] not appear to have been . . .

raised on appeal, and the Court of Appeals did not explicitly discuss [them].” However, the court also noted

that “[e]ven if [the arguments] were proper to address

on remand because [they] related to the drug quantity,

the [c]ourt would not find [them] to have any merit.”

In particular, the court found that the government “established, by a preponderance of the evidence, that the

conspiracy to possess with intent to deliver cocaine

involved, at least, between five and fifteen kilograms

of cocaine.”

As it did with Barnes, the district court viewed Taylor’s

arguments as waived and beyond the scope of remand.

Both Barnes and Taylor appeal their sentences.
Nos. 11-1261 & 11-1602 11

This case does not present the question of whether a district

2

court must consider post-sentencing rehabilitation upon a

general remand for resentencing. We, therefore, reserve the

issue.

II. Discussion

A. The Scope of Remand and the Impact of Pepper

v. United States

We first address whether the district court improperly

determined the scope of remand when it refused

to entertain Barnes and Taylor’s new arguments at resentencing. In particular, we consider whether Pepper

v. United States, 131 S. Ct. at 1229, abolishes waiver in

the context of re-sentencing or whether “de novo”

re-sentencing retains a more limited meaning. We

conclude that, upon a general remand for re-sentencing,

a district court may permit new arguments and evidence

as it deems necessary to re-fashion its sentence. General

remand does not, however, entitle the defendants

to present new arguments and evidence beyond that

pertinent to the issues raised on appeal.2

We review a district court’s determination of the scope

of remand de novo. United States v. Husband, 312 F.3d

247, 251 (7th Cir. 2002) (citing United States v. Watson,

189 F.3d 496, 500 (7th Cir. 1999)).

1. The Scope of a General Remand for Re-Sentencing

This Court’s decision to remand and our corresponding

opinion dictate the scope of that remand. United States
12 Nos. 11-1261 & 11-1602

v. Avila, 634 F.3d 958, 961 (7th Cir. 2011). If this Court

remands to correct a “discrete, particular error that can

be corrected . . . without . . . a redetermination of other

issues, the district court is limited to correcting that

error.” United States v. Parker, 101 F.3d 527, 528 (7th Cir.

1996). The Court’s silence on an issue raised on appeal

means “it is not available for consideration on remand.”

See Husband, 312 F.3d at 251 (citing Barrow v. Falck, 11

F.3d 729, 730 (7th Cir. 1993)). Moreover, any issue that

could have been raised on appeal but was not is waived

and, therefore, not remanded. See Husband, 312 F.3d at

250-51; see also Parker, 101 F.3d at 528 (“A party cannot

use the accident of a remand to raise in a second appeal

an issue that he could just as well have raised in the

first appeal because the remand did not affect it.”).

a. The Impact of Pepper v. United States

Barnes and Taylor contend that they were entitled to

the district court’s consideration of any and all arguments they raised upon re-sentencing. They refer this

Court to the Supreme Court’s recent decision in Pepper

v. United States, 131 S. Ct. at 1229, which they read

as holding that an order for general remand by the

Court of Appeals erases the original sentencing proceeding and, with it, any issues of waiver.

In Pepper, the Supreme Court denied the appellant’s

claim that the “law of the case” doctrine prevented a new

judge, upon re-sentencing, from disturbing the prior

sentencing judge’s downward departure from the defen-
Nos. 11-1261 & 11-1602 13

Even the Sixth and Tenth Circuits, which adopt a more lenient

3

view of the scope of remand than does the Seventh Circuit,

do not interpret Pepper as eliminating waiver. See United States

v. West, 646 F.3d 745, 749 (10th Cir. 2011) (favoring, in a

post-Pepper regime, a rule whereby a district court “do[es] not

make inquiry into whether the issue presented is antecedent

(continued...)

dant’s recommended Guideline sentence. Pepper, 131

S. Ct. at 1251. The Court equated general remands

for re-sentencing to an order for de novo re-sentencing,

noting that such orders “effectively wiped the slate

clean.” Id. at 1250-51. As such, it concluded, “an appellate court when reversing one part of a defendant’s sentence ‘may vacate the entire sentence . . . so that, on

remand, the trial court can reconfigure the sentencing

plan . . . to satisfy the sentencing factors in 18 U.S.C.

§ 3553(a).’ ” Id. at 1251 (quoting Greenlaw v. United States,

554 U.S. 237, 253 (2008)).

At issue, then, is what the Pepper Court intended by

the term “de novo” in the re-sentencing context.

Barnes and Taylor interpret the Court’s dicta that

general remand orders “wipe the slate clean” as entitling them to present any and all new arguments at

re-sentencing—regardless of their relevance to the

error giving rise to the remand.

Although few courts have yet to apply Pepper, and

the Supreme Court has not yet defined the scope of

this case, no court has concluded that Pepper operates

to abolish waiver in the context of re-sentencing. As it 3
14 Nos. 11-1261 & 11-1602

(...continued) 3

to or arises out of the correction on appeal. Instead the district

court is to look to the mandate for any limitations on the

scope of the remand and, in the absence of such limitations,

exercise discretion in determining the appropriate scope”) (emphasis

added); see also United States v. Garcia-Robles, 640 F.3d 159,

166 (6th Cir. 2011) (holding, in a post-Pepper regime, that “[a]

general remand allows the district court to re-sentence the

defendant de novo, which means that the district court may . . .

conside[r] new evidence and issues” (quoting United States v.

Moore, 131 F.3d 595, 597-98 (6th Cir. 1997))) (emphasis added).

discusses de novo re-sentencing, the Court emphasizes

a district court’s ability to “effectuate its sentencing

intent,” id. at 1251, underscoring its concern that

re-sentencing courts should not be bound by their predecessors or rotely input the Court of Appeal’s changes

into their original sentencing calculations. Its holding

thus stands for the proposition that general remands

render a district court unconstrained by any element of

the prior sentence. Id. 

Allowing a district court to freely balance already

and properly raised arguments to preserve or revise

its sentencing objectives does not equate to carte blanche

for defendants to raise new arguments unrelated to the

issues raised on appeal. To the contrary, the only new

evidence that the Supreme Court considered and

approved of is that of a defendant’s postsentencing rehabilitation. Id. at 1236 (“We hold that when a defendant’s sentence has been set aside on appeal, a district

court at resentencing may consider evidence of the de-
Nos. 11-1261 & 11-1602 15

fendant’s postsentencing rehabilitation . . . .”). Barnes

and Taylor attempt to expand the Pepper Court’s

holdings so that, upon general remand, a defendant

enjoys a manifest right to raise new issues. We decline the

invitation to do so. See, e.g., United States v. White, 406

F.3d 827, 831-32 (7th Cir. 2005) (“Our case law has characterized the scope of the remand issue using two

analogies: (1) that upon remand the district court is

presented with a ‘clean slate’ or (2) the district court

may ‘unbundle the sentencing package.’ There is no

meaningful distinction in this phraseology.”).

We, therefore, hold that when a case is generally remanded to the district court for re-sentencing, the

district court may entertain new arguments as necessary

to effectuate its sentencing intent, but it is not obligated

to consider any new evidence or arguments beyond

that relevant to the issues raised on appeal. Accordingly,

the district court did not err by refusing to consider

Barnes and Taylor’s new arguments as beyond the scope

of remand.

2. Harmless Error Applies

Assuming arguendo that the district court should have

considered Barnes and Taylor’s new arguments within

the scope of remand, its error is harmless. See, e.g., United

States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008) (applying harmless error analysis to sentencing). An error

is harmless if it “did not affect the district court’s

selection of the sentence imposed.” Williams v. United

States, 503 U.S. 193, 203 (1992). The district court in this
16 Nos. 11-1261 & 11-1602

case examined both defendants’ waived arguments and

explained why they would not prevail even if it had

formally reached their merits. See discussion supra Part

I.B.2b, d. Since it expressly stated that these arguments

would not have altered the sentences it pronounced,

any error is harmless.

B. Abuse of Discretion

Barnes and Taylor also appeal their sentences as the

result of procedural error and as unreasonable. Accordingly, they argue that the district court abused its discretion by imposing them.

Our review of a district court’s sentencing decision is

a two-step analysis. United States v. Hall, 608 F.3d 340,

346 (7th Cir. 2010). First, we review de novo any alleged

procedural error. Id. Second, we examine the reasonableness of a sentence imposed by a district court for abuse

of discretion. United States v. Boling, 648 F.3d 474, 483

(7th Cir. 2011).

1. Procedural Error in the Application of 18 U.S.C.

§ 3553(a)

Barnes and Taylor each claim that the district court

committed procedural error when it failed to consider

mitigating evidence about their background, character,

and conduct. See generally Boling, 648 F.3d at 483 (listing

failure to consider the factors listed in 18 U.S.C. § 3553(a)

as procedural error).
Nos. 11-1261 & 11-1602 17

a. Barnes’ Family Circumstances

Barnes contends that the district court refused to

exercise its discretion to reduce his sentence based on

the “hardship his children would suffer as a result of

his incarceration.” He suggests that the court wrongly

disregarded the hardship on his children as the result

of his own conduct, thereby affording the argument

insufficient consideration.

At Barnes’ re-sentencing, the district court made the

following comments in response to his mother’s testimony and his request that it consider his family circumstances as mitigating evidence:

[E]very time somebody is sentenced in this court

or any other court and has to leave their family, it

does work a hardship not only on the individual

offender like Mr. Barnes, but on the entire family.

And that’s the consequence of the conduct. And it’s

the consequence of what our system of judgment

provides in having to sentence somebody to do a

term of incarceration like Mr. Barnes, there will be

these kinds of sad circumstances. . . . But that cannot

be a justification or a reason for the Court to do

other than what the law provides and allows for in

terms of what the Court can do for sentencing,

because the circumstances of this family are similar

to others who have to go through this process,

because a loved one has been sent to jail.

In Barnes’ view, the district court summarily rejected

his family circumstances as mitigating evidence because

he was responsible for imposing that hardship upon his
18 Nos. 11-1261 & 11-1602

family. In doing so, he argues, the district court ran afoul

of this Court’s ruling that “the fact that the consequences

of incarceration are attributable to [a defendant’s] own

misconduct may be a factor in the analysis but . . . not

the sole factor nor [the] dispositive one.” United States

v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008).

However, the district court’s explanation for its

sentence calculation counsels against Barnes’ interpretation of its earlier comments. As the court announced

its ruling, it stated:

The first factor I assessed was the seriousness of the

offense. I noted that this case involved a plan to carry

out the armed robbery of other armed individuals . . . .

Mr. Barnes also anticipated selling a large quantity

of drugs into the community. The fact that Mr. Barnes

had high capacity weapons and bullet proof vests,

further spoke to the violent potential of his crime

and his willingness and preparedness to engage in

that violence. . . . I also addressed the need to promote

respect for law, noting that Mr. Barnes not only

shunned the law for his own gain as a get-rich-quickscheme, but recruited others into his criminal activity. I note further that Mr. Barnes noted an

absolute disregard for the law when his committed

perjury . . . . I noted at sentencing that Mr. Barnes’

criminal activity had escalated . . . . In consideration

of these factors, I believed that a sentence of 292

months was the sentence that best took into account

all the purposes of punishment . . . . That same

belief holds true today. In consideration of mitigating
Nos. 11-1261 & 11-1602 19

factors, the Court . . . is sympathetic to [his] family

circumstances, but finds that they do not outweigh

the seriousness of the offense, or the need to impose

a sentence that adequately addressed the other purposes of punishment.

The court declined to reduce Barnes’ sentence in light

of his family circumstances not because his conduct

created the hardship, but because his family difficulties

were not so extraordinary as to outweigh or mitigate

against the other § 3553(a) factors the court considered.

The court’s analysis does not, as Barnes alleges, give

short shrift to his family circumstances. Rather, it fully

considers his circumstances and deems them insufficient to merit a sentence reduction.

To this end, Barnes’ assertion that the court viewed

itself as legally unable to weigh the hardship on his

children and, therefore, failed to exercise its discretion

similarly lacks merit. Reading the court’s comments

at sentencing in their entirety, Barnes’ selected

phrases—“cannot be a justification,” “what the Court

can do for sentencing,” and “what the law provides

and allows for”—communicate the court’s unwillingness

to reduce his sentence based on family hardship, not

its legal inability to do so. In this case, the court’s refusal

to reduce Barnes’ sentence in light of other § 3553(a)

factors reflects judicial discretion, not its absence.

b. Taylor’s Criminal History and Character

Although he raises the argument as an attack on

his sentence’s reasonableness, Taylor maintains that his
20 Nos. 11-1261 & 11-1602

sentence does not adequately reflect his role in the conspiracy, absence of criminal history, and rehabilitative

prospects. The district court evaluated and declined to

apply these factors to reduce the sentence it imposed.

It stated in its opinion:

[T]he evidence is that the Defendant agreed with

others to rob a stash house to obtain drugs, was prepared to carry out the plan, and expected to be successful in the execution of the plan. He was not

puffing when he indicated, and then demonstrated,

his willingness to obtain the shipment of drugs by

force. He anticipated that the stash house would be

armed and took this factor into account in his plan,

arriving in Fort Wayne with firearms, ammunition,

and additional people who were willing to help

him carry out the plan. He met with the other conspirators to discuss the details of the plan, including

who would enter the stash house and who would

stand guard. . . . [T]here are no mitigating factors that

suggest a sentence of 188 months is greater than

necessary to accomplish the purpose of punishment.

The Defendant notes that he participated in the

Federal Job Corp Program and was employed at a

cabinet company. The Defendant’s participation in

the Job Corp ended in 2001 as did his employment

and [he] does not indicate what he did from 2001

until May 2006 when he conspired to possess with

intent to distribute cocaine. . . . The Court does not find

the Defendant’s vocational training and minimal

employment to be a mitigating factor that justifies

reducing his sentence. The Defendant’s lack of crim-
Nos. 11-1261 & 11-1602 21

inal history, which he also points to as a mitigating

factor, is already accounted for in his advisory Guideline range and in this Court’s imposition of 188

months imprisonment.

The district court examined the mitigating evidence

that Taylor presented. It incorporated his criminal

history into his base Guideline range and afforded no

reductive weight to his participation in the conspiracy

or history in the Job Corp. Accordingly, it properly considered the sentencing factors as required by § 3553(a)

and committed no procedural error. See United States v.

Ruzzano, 247 F.3d 688, 699 (7th Cir. 2001) (“We will not

find an abuse of discretion where, as here, the defendant

merely disagrees with the weight that the district judge

assigned to various mitigating factors.”).

2. Reasonableness

Both Barnes and Taylor’s sentences are substantively

reasonable. A correctly calculated, within-Guidelines

sentence is entitled to a presumption of reasonableness.

United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010).

To sustain the presumption, a district court need

provide only a justification for its sentence “adequate

to allow for meaningful appellate review and to

promote the perception of fair sentencing.” United States

v. Scott, 555 F.3d 605, 608 (7th Cir. 2010) (quoting United

States v. Omole, 523 F.3d 691, 698 (7th Cir. 2008)) (internal

quotation marks omitted).

Barnes does not dispute the substantive reasonableness

of his sentence.
22 Nos. 11-1261 & 11-1602

Taylor argues that re-sentencing him to the same

188 months to which he was originally sentenced cannot

be reasonable because, based on all of the same evidence except a lower drug amount, the court subjects

him to the high end of his new Guideline range when

it previously found him entitled to be sentenced on the

low end of his Guideline range. He states that his

new sentence “fails to reflect (to his advantage) the only

variable that changed between May[] 2009 and his resentencing in March[] 2011; a lesser amount of cocaine

being attributable to the conspiracy.”

The Supreme Court, in Pepper, made clear that, on

general remand, a re-sentencing judge is not bound by

the findings of the original sentencing proceeding.

Pepper, 131 S. Ct. at 1250-51. Consequently, the district

court was not required to apply a low-end-of-the-Guidelines sentence simply because it had done so before.

In this case, the district court explained it imposed

the same 188-month sentence on Taylor because that

number of months remained necessary to reflect the

seriousness of the offense, to promote respect for the

law, and to protect others from Taylor’s crimes. It also

explained its decision to use the high end of the new,

lower Guideline range, stating that “the Court . . . first

imposed the 188-month sentence consider[ing] that the

amount of drugs used to determine the sentences of

other Codefendants involved in the same conspiracy

was less than 15 kilograms. It was for this reason that [it]

sentenced [Taylor] to the low end of the advisory

range that had been calculated using forty kilograms of
Nos. 11-1261 & 11-1602 23

cocaine.” The original 188-month sentence thus departed

from the 235 months available to the court in recognition

of the fact that the court used a lower drug quantity

to calculate his co-conspirators’ Guideline ranges. Since,

upon re-sentencing, all co-conspirators were sentenced

based on an consistent amount of drugs, the court

found no compelling reason to depart from the maximum sentence available to it under the new Guideline

range.

The district court’s analysis evinces the perception of

fair sentencing, Scott, 555 F.3d 608, and reasonableness.

It did not abuse its discretion by imposing upon Barnes

a 292-month sentence or upon Taylor a 188-month sentence.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

10-25-11