United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

            Submitted March 17, 2008

      Decided August 27, 2008

Before

   JOEL M. FLAUM,   Circuit Judge

   DANIEL A. MANION,   Circuit Judge

   DIANE P. WOOD,   Circuit Judge

No. 06‐3806

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JEFFREY G. COLEMAN,

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 04 CR  66

Rudolph T. Randa, Chief Judge.

O R D E R

Jeffrey Coleman pleaded guilty to conspiring to distribute five kilograms or more

of cocaine, and the district court sentenced Coleman to 360 months’ imprisonment.  On

a prior appeal, we affirmed the district court’s sentence noting “district court

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 06-3806 Page 2

1

 Adding to our lack of confidence that the district court did not improperly presume the

Guidelines sentence a reasonable sentence is its statement that it “has to consider the gravity of the

offense, the character of the Defendant under 3553, and that is along with the other factors that are

contained in 3553, to determine whether or not there have been or there are . . . facts which

overcome what the Supreme Court has indicated is a rebuttable presumption relative to the range

of sentence established by the sentencing guidelines.” (emphasis added). [Coleman’s Rule 54

statement attachment at 201.] 

considered § 3553, including Coleman’s history and characteristics, his prior

convictions, minimal work history, prior arrests, and dropping out of school, and

concluded that the guideline sentence was a reasonable one.”  On remand from the

Supreme Court to consider this appeal in light of Rita v. United States, 127 S. Ct. 2456

(2007), we vacate and remand for resentencing.

A district court may not employ a presumption that a sentence within a

defendant’s Guideline range is reasonable.  Rita v. United States, 127 S. Ct. 2456, 2465

(2007).  Only an appellate court may apply that presumption.  Id.  The Guidelines serve

as a starting point for the district court, and it must calculate the Guidelines range

correctly, but a sentence must be based on the factors in § 3553 without a presumption

favoring a sentence within the Guidelines range.  United States v. Sachsenmaier, 491 F.3d

680, 685 (7th Cir. 2007).  

In reviewing this case on remand from the Supreme Court to consider this

appeal in light of Rita v. United States, 127 S. Ct. 2456 (2007), it appears that the district

court made the presumption regarding the reasonableness of the Guidelines sentence

that is reserved only for appellate review.  For instance, in discussing the method of

sentencing after Booker, the district court stated the district court is to make the

Guidelines calculation, and “[o]nce you’ve done that, any sentence within that is a

reasonable sentence.  And that’s a reputably presumed – that is, a rebuttable

presumption exists that that is the appropriate disposition.  So what does it take to

overcome that?  Well, when the [district court] looks at the nature of the circumstances

of the offense, it doesn’t find anything to rebut that presumption.”1 We note, however,

that the district court did not have the benefit of Rita or our opinion in Sachsenmaier at

the time it sentenced Coleman.  With the benefit of this guidance, we vacate Coleman’s

sentence and remand for resentencing in light of Rita.