1 Cite as: 55 5 U

. S. ____ (2009)

Per Curia m 

## SUPREME CO URT O FTHE UNI TED STATES LAWR EN CE W. N E LSO N , AKA ZIKEE v. UNITE D STATE S
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE S COU R T OF APPEALS FOR THE FOURTH CIRCUIT No. 08–5 65 7. Dec i ded Jan u a r y26, 2009 P ER C UR IAM

. Lawrence Nelson was convictedof one countof conspir

acy to distribute and to possess with intent to distribute more than 50 grams of cocaine base. See 21 U. S. C. §846. The District Court cal c ulated Nelson’s sentencing range under the United States Sentencing Guidelines, and i m posed a sentence of 3 60 months in prison (the bottom of the range). During sentencing, the judge explained tha t under Fourth Circuit precedent, “ ‘the Guidelines are considered presumptively reasonable,’ ” so that “ ‘unless there’s a good reason in the [statutory sen t encing] fac

tors

. . . , the Guideline sentence is the reasonable sen

tence.’ ” Pet

. for Cert. 10. The United States Court of Appeals for the Fourth Circuit affir m ed Nelson’s convic tion and sentence. Uni t ed Sta t esv. Ne ls on , 237 Fed. Appx. 819 (2007) (per cu riam )

. It noted that within-Guidelines sentences a r e presump tively reasonable, and rejected Nel s on’s argum e nt that the DistrictCo urt’s reliance on that presumption was er ror. Id. , at 821. Nelson filed a peti tion for a wr it of cer t iorari. W e granted the petition, va cated the ju dgment, an d remanded the case to the Fourth Circuit forf u rther cons ideration in light of Ritav. United Sta t es , 551 U. S. 338 (2 007). Nelso n v. United States , 552 U. S. ___ (200 8). On remand and without further briefing, th e Fourth Circuit aga i n affirmed the senten ce. 276 Fed. Appx. 331 (2008) (per curiam)

. The court acknowledged that under2 NELSON v. UNITED STAT ES

Per Curia m Rita , while courts of appeals “may apply a presumption of reasonableness to a di strict cour t sentence that reflects a proper application of the Sentencing Guidelines,” 55 1 U. S., at 347, “the sentencing court does not enjoy the benefit of a legal pre s umption that the Gu idelines sen

tence shoul dapply,” id. , at 351. Instead, the sentencin g court must first calcula t e the Guid elines range, and then consider what sentence is appropriate for the individual defendant in light of the stat utory sentencing factors, 1 8 U. S. C. §3553(a), explaining any variance from the former with reference to the latter. N o netheless, the Fourt h Circuit up held the sentence, finding thatthe Distric t Court did not treatt h e Guidelines as “ma n datory” b u t rather unde r stood that they were o n ly advisory. 276 Fed. Appx., at 33 3. Nelson has again filed a petition f o r a writ of certiorari, reasserting, inter ali a , essentially the same a r gument he made before us the first ti me: t hat the Di strict Cour t’s statements clearly indicate thatit impermissibly applied a presumption of reasonableness t ohis Guidelines rang e. The United States admits that the Fourth Circ uit erred in rejecting th at argumen tfollowing our remand; we agree. Our cases do not allow a senten cing cour t to presume that a sent ence within the applic able Guidelines range is reasonable. In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is a n appell ateco urt presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that th e Guidelines sentence should apply.” 551 U. S., at 351. An d in Gall v. UnitedStates , 552 U. S. ___ (2007), we reiter

ated that d i strict jud g es, in considering how the various statutory s e ntencing factors apply to anindi vidual defen

dant, “may not presu m e that the Guidelines range is reasonable. ” Id. , at ___ (slip op., at 11–12). In this case, the Court of Appe als quoted the above language from Rita but affirmed the sentence anywa y3 Cite as: 55 5 U

. S. ____ (2009)

Per Curia m after finding that the District J u dge did n o t treat th e Guidelines as mandatory. That is true, but beside the point. The Guidelin es are not only not mandatory on sentencing courts; they are also not to be presumedre a sonable. We think i tplain fro mthe com m ents of the sentencing judge that he did apply a presumption of rea

sonablen ess to Nelson’s Guidelines range. Under ou r recent prec edents, that constitutes error. The petition for certiorari and the motion for leave to proceed in forma pau p erisare granted. The judgment o f the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so orde red.1 Cite as: 55 5 U

. S. ____ (2009)

B REYER , J ., concu rrin gin j u dgm e nt 

## SUPREME CO URT O FTHE UNI TED STATES LAWR EN CE W. N E LSO N , AKA ZIKEE v. UNITE D STATE S
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE S COU R T OF APPEALS FOR THE FOURTH CIRCUIT No. 08–5 65 7. Dec i ded Jan u a r y26, 2009 J USTICE B RE YE R , with whom J UST I CE ALITO joins, c o n curring in t h e judgment. The Solicitor General confessed that the U. S. Court of Appeals for the Fourth Circuit err e d. Given th e nature of the error, a n d in light of the Solicitor General’s confession, I would grant the petition for certiorari, vacate the judg

ment of the Court of Appeals, and remand for furth er proceedings.