Cite as: 555 U. S. ____ (2009) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

LAWRENCE W. NELSON, AKA ZIKEE v. 

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08–5657. Decided January 26, 2009

 PER CURIAM. 

Lawrence Nelson was convicted of one count of conspiracy 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 calculated Nelson’s sentencing range

under the United States Sentencing Guidelines, and imposed a sentence of 360 months in prison (the bottom of 

the range). During sentencing, the judge explained that

under Fourth Circuit precedent, “‘the Guidelines are 

considered presumptively reasonable,’” so that “‘unless 

there’s a good reason in the [statutory sentencing] factors . . . , the Guideline sentence is the reasonable sentence.’” Pet. for Cert. 10. 

The United States Court of Appeals for the Fourth

Circuit affirmed Nelson’s conviction and sentence. United 

States v. Nelson, 237 Fed. Appx. 819 (2007) (per curiam). 

It noted that within-Guidelines sentences are presumptively reasonable, and rejected Nelson’s argument that the

District Court’s reliance on that presumption was error. 

Id., at 821. 

Nelson filed a petition for a writ of certiorari. We 

granted the petition, vacated the judgment, and remanded

the case to the Fourth Circuit for further consideration in 

light of Rita v. United States, 551 U. S. 338 (2007). Nelson 

v. United States, 552 U. S. ___ (2008). 

On remand and without further briefing, the Fourth

Circuit again affirmed the sentence. 276 Fed. Appx. 331

(2008) (per curiam). The court acknowledged that under 
2 NELSON v. UNITED STATES 

Per Curiam 

Rita, while courts of appeals “may apply a presumption of 

reasonableness to a district court sentence that reflects a 

proper application of the Sentencing Guidelines,” 551 

U. S., at 347, “the sentencing court does not enjoy the

benefit of a legal presumption that the Guidelines sentence should apply,” id., at 351. Instead, the sentencing

court must first calculate the Guidelines range, and then 

consider what sentence is appropriate for the individual

defendant in light of the statutory sentencing factors, 18

U. S. C. §3553(a), explaining any variance from the former 

with reference to the latter. Nonetheless, the Fourth 

Circuit upheld the sentence, finding that the District

Court did not treat the Guidelines as “mandatory” but 

rather understood that they were only advisory. 276 Fed. 

Appx., at 333. 

Nelson has again filed a petition for a writ of certiorari,

reasserting, inter alia, essentially the same argument he

made before us the first time: that the District Court’s 

statements clearly indicate that it impermissibly applied a

presumption of reasonableness to his Guidelines range. 

The United States admits that the Fourth Circuit erred in 

rejecting that argument following our remand; we agree. 

Our cases do not allow a sentencing court to presume 

that a sentence within the applicable Guidelines range is 

reasonable. In Rita we said as much, in fairly explicit

terms: “We repeat that the presumption before us is an 

appellate court presumption. . . . [T]he sentencing court

does not enjoy the benefit of a legal presumption that the

Guidelines sentence should apply.” 551 U. S., at 351. And 

in Gall v. United States, 552 U. S. ___ (2007), we reiterated that district judges, in considering how the various 

statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is 

reasonable.” Id., at ___ (slip op., at 11–12).

In this case, the Court of Appeals quoted the above 

language from Rita but affirmed the sentence anyway 
Cite as: 555 U. S. ____ (2009) 3 

Per Curiam 

after finding that the District Judge did not treat the

Guidelines as mandatory. That is true, but beside the 

point. The Guidelines are not only not mandatory on 

sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the 

sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range. Under our 

recent precedents, that constitutes error. 

The petition for certiorari and the motion for leave to

proceed in forma pauperis are granted. The judgment of

the Court of Appeals is reversed, and the case is remanded

for further proceedings consistent with this opinion. 

It is so ordered. 
Cite as: 555 U. S. ____ (2009) 1 

BREYER, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

LAWRENCE W. NELSON, AKA ZIKEE v. 

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08–5657. Decided January 26, 2009

 JUSTICE BREYER, with whom JUSTICE ALITO joins, concurring in the judgment. 

The Solicitor General confessed that the U. S. Court of 

Appeals for the Fourth Circuit erred. Given the nature of 

the error, and in light of the Solicitor General’s confession, 

I would grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand for further 

proceedings.