United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 27, 2006

Decided April 5, 2006

Before

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Nos. 05-3281 & 05-3401

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NATHAN MOORE and

NATASHA MOORE,

Defendants-Appellants.

Appeals from the United States

District Court for the Southern

District of Illinois.

No. 3:04CR30053

David R. Herndon,

Judge.

O R D E R

These two cases raise the same issues and so we have consolidated them for

decision. The Moores obtained lines of credit with thirteen vendors of DVD’s and

books by posing as representatives for a fictitious company and providing fake

credit references. They then used the lines of credit to obtain over $160,000 worth

of merchandise that they never paid for, but sold for cash. The Moores intended to

defraud the vendors of another $130,000. Nathan and Natasha both pleaded guilty

to conspiring to commit mail fraud, 18 U.S.C. §§ 1341 & 1349, and were sentenced

under advisory guidelines: Nathan to 41 months’ imprisonment and Natasha to 33

months’ imprisonment. They were also ordered to pay, jointly and severally,

restitution totaling $132,425. On appeal each of the Moores argues that the district

court did not follow the proper procedure for imposing sentence after United States

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
Nos. 05-3281 & 05-3401 Page 2

v. Booker, 543 U.S. 220 (2005), and that their prison sentences are unreasonable. 

We affirm.

I. BACKGROUND

In sentencing each defendant the district court began by acknowledging

Booker’s holding that the sentencing guidelines are advisory, and then went on to

calculate the applicable guidelines range. Based on the stipulated intended loss,

the court added 12 levels to the base offense level of six. See U.S.S.G. § 2B1.1(a),

(b)(1)(G). The court then applied a two-level increase because there were more than

10 victims, see id. § 2B1.1(b)(2)(A), another two-level increase because the fraud

involved posing as an educational institution, see id. § 2B1.1(b)(7)(A), and a twolevel decrease for acceptance of responsibility, see id. § 3E1.1(a), resulting in a total

offense level of 20 for each defendant. Given Nathan’s criminal history category of

III and Natasha’s criminal history category of I, the guidelines yielded him a 41- to

51-month imprisonment range and her a 33- to 41-month imprisonment range.

In each case the court acknowledged its discretion to impose a non-guidelines

sentence and heard the parties’ arguments on their appropriate sentences in light of

the sentencing factors set out in 18 U.S.C. § 3553(a). Nathan and Natasha each

argued that the court should sentence them to probation to allow them to care for

their minor son and to begin paying restitution immediately to their victims. In

each case the court noted its sentencing latitude before concluding that the

seriousness of the crime, their recidivism, and the need for deterrence made a lowend guidelines sentence appropriate for each. Nevertheless, to address their

concern for their son, the court initially stayed execution of Natasha’s prison

sentence until the end of Nathan’s prison sentence, and to address their stated

concern for their victims the court ordered Natasha to begin paying restitution

immediately. However, the court later lifted the stay on Natasha’s motion; she had

concluded that “a delay in her incarceration would impact their child more

dramatically as he becomes more mature then it would presently.”

II. ANALYSIS

On appeal, Nathan and Natasha both assert that the district court did not

follow the proper procedure for imposing sentence post-Booker. Nathan contends

that the court “failed to adequately consider” his “personal history” and obligation

to pay restitution. Natasha contends that the court ignored her “family situation,”

lack of “significant criminal history,” and obligation to pay restitution, and

considered only the need to teach her a lesson.

In sentencing a defendant after Booker, courts in this circuit must first

calculate the applicable advisory guidelines range, United States v. Alburay, 415
Nos. 05-3281 & 05-3401 Page 3

F.3d 782, 786 (7th Cir. 2005), then consider the factors in 18 U.S.C. § 3553(a),

United States v. Re, 419 F.3d 582, 583 (7th Cir. 2005), and, finally, “articulate the

factors that determined” the chosen sentence, United States v. Dean, 414 F.3d 725,

729 (7th Cir. 2005). Whether the district court properly followed this procedure is a

question of law we review de novo. United States v. Wesley, 422 F.3d 509, 512 (7th

Cir. 2005).

The district court followed the post-Booker sentencing procedure. First, the

court properly calculated each defendant’s applicable guidelines range. No one

disputes this. Next, the court heard each side’s position on the bearing of the

§ 3553(a) factors. Finally, the court determined that a guidelines sentence was

reasonable based on the seriousness of the crime, the need to deter the Moores and

others, and the fact that both were repeat offenders. The court did not ignore their

§ 3553(a) arguments but, rather, specifically responded to them by staggering their

terms of imprisonment so that their son would not be left unattended and ordering

Natasha to immediately pay restitution to her victims until her term commenced. 

Nothing more was required of the district court. See United States v. George, 403

F.3d 470, 472-73 (7th Cir. 2005) (judges need not recite the bearing of each

§ 3553(a) factor).

The Moores next argue that their sentences are unreasonable. Sentences like

theirs within a properly calculated guidelines range are presumed reasonable. 

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Each contends that

the presumption in Mykytiuk was wrongly established. They suggest that “[t]he

Sentencing Guidelines and policy statements of the Sentencing Commission are just

two of the ten enumerated categories of factors [under 18 U.S.C. § 3553(a)] which a

court must consider,” and therefore the presumption of reasonableness

impermissibly assigns greater weight to certain factors. The Moores attempt to find

support in United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (rejecting rule

that sentence within guidelines range is per se reasonable), and United States v.

Winters, 416 F.3d 856, 861 (8th Cir. 2005) (rejecting argument “that the range of

reasonableness is essentially co-extensive with the Guidelines range”), though

Nathan acknowledges that both cases reject a per se rule rather than a rebuttable

presumption.

A majority of circuits have followed this court in presuming that properly

calculated guidelines sentences are reasonable. See United States v. Kristl, 437

F.3d 1050, 1054 (10th Cir. 2006); United States v. Moreland, 437 F.3d 424, 433 (4th

Cir. 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) (“[O]rdinarily we would expect a sentence within the

Guidelines range to be reasonable.”); United States v. Tobacco, 428 F.3d 1148, 1151

(8th Cir. 2005). Only one circuit has expressly declined to apply the presumption. 
Nos. 05-3281 & 05-3401 Page 4

See United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2006) (rejecting the

Mykytiuk presumption as unnecessary because defendant bears burden of showing

unreasonableness).

Last, Nathan and Natasha argue that they can rebut the presumption of

reasonableness because, in their view, the sentences are longer than necessary to

fulfill the requirements of § 3553(a). Both characterize their prison sentences as

unreasonably severe in light of their “family situation” and “personal history,” see

18 U.S.C. § 3553(a)(1), the improbability of reoffending, see id § 3553(a)(2)(c), and

their obligation to pay restitution, see id § 3553(a)(7). Specifically, Natasha

maintains that she lacks “significant criminal history,” and both state that nobody

else can care for their son. Natasha further suggests that she is unlikely to reoffend

because her infant child recently passed away and she has “los[t] connection” with

her surviving son due to her incarceration. Nathan ventures that the guidelines

“effectively overrepresented his criminal history” by raising his criminal history

category two levels for a single DWI offense. Finally, each adds, while imprisoned

they can’t pay the ordered restitution.

These arguments are based on a failure to appreciate the standard of review. 

Though a defendant can rebut the presumption that her sentence is reasonable by

showing that “her sentence is unreasonable when measured against the factors set

forth in 18 U.S.C. § 3553(a),” Mykytiuk, 415 F.3d at 608; see also United States v.

Jordan, 435 F.3d 693, 696 (7th Cir. 2006), review is extremely deferential, and we

will not vacate a sentence just because another sentence would also be reasonable,

United States v. Lopez, 430 F.3d 854, 856-57 (7th Cir. 2005). Neither Nathan nor

Natasha has pointed to anything so compelling about their circumstances that

would require the district judge to impose a sentence below the guidelines range.

III. CONCLUSION

For the foregoing reasons, the sentences imposed by the district court are

AFFIRMED.