United States of America v. Virgil D. Carroll

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
August 24, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-1485
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VIRGIL D. CARROLL,
Defendant-Appellant.
Appeal from the United States
District Court for the Western District
of Wisconsin.
No. 03 CR 85
John C. Shabaz,
Judge.
O R D E R
After the Supreme Court held that the sentencing guidelines are advisory
and not mandatory, United States v. Booker, 125 S.Ct. 738, 757 (2005), we ordered
a limited remand to determine whether the district court would have sentenced
Carroll differently had it known that it was not bound by the guidelines. See
United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005). The district judge has
replied stating that he would have given Carroll the same sentence under advisory
guidelines. We invited the parties to file arguments concerning the reasonableness
of the sentences, and both parties have filed responses. We now affirm the
sentence.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1485 Page 2
1 Carroll attempts to bolster his argument by stating that the court failed to
“indicate any willingness to consider non-guidelines sentencing factors in any other
manner than applying them to the guidelines sentence itself.” This is also
inaccurate in that the district court did consider factors outside the guidelines such
as Carroll’s “age, his status as head of family, his service in the military.” However,
the court concluded that those factors were “counterbalanced by the need to hold
[Carroll] accountable for his criminal conduct which includes distributing
methamphetamine to two minor girls and to deter him from any further criminal
conduct.”
Carroll contends that the district court effectively treated the guidelines “as
the beginning and end of the sentencing analysis.” We have held that a sentence
within a properly calculated guideline range is presumptively reasonable. United
States v. Mykytiuk, No. 04-1196, 2005 WL 1592956, at *1 (7th Cir. July 7, 2005).
An appellant may rebut the presumption of reasonableness if he can demonstrate
that his sentence would be unreasonable when measured against the factors set
forth in 18 U.S.C. § 3553(a). Id. at *2.
The district court properly applied the Guidelines when calculating Carroll’s
sentence. Indeed, Carroll does not challenge the district judge’s application of the
guidelines. Instead, he claims that the sentencing judge treated the guidelines as
“de facto binding.” This statement is simply inaccurate. The court specifically stated
that “[h]ad the guidelines been advisory, this court would have imposed the same
sentence believing it to be reasonable considering the defendant’s criminal conduct,
and [the need] to hold defendant accountable and protect the community from
further criminality on his part.” What’s more, the court specifically referenced the
factors enumerated in 18 U.S.C. § 3553(a) factors and decided that Carroll would
have received the same sentence had the guidelines been merely advisory.1 Carroll
offers no argument as to why the district court’s analysis should be considered
insufficient to support his sentence.
Because the district court would have imposed the same sentence post-
Booker and due to the fact that Carroll’s sentence is reasonable, he has failed to
establish plain error. See id. (citing Johnson v. United States, 520 U.S. 461, 466-67,
117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Accordingly, we AFFIRM the judgment of
the district court.

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