United States of America v. Travis Robinson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2224
U NITED S TATES OF A MERICA ,
Plaintiff-Appellant,
v.
T RAVIS R OBINSON ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 CR 109—Allen Sharp, Judge.
____________
S UBMITTED D ECEMBER 5, 2005—D ECIDED J ANUARY 13, 2006
____________
Before P OSNER , K ANNE , and S YKES , Circuit Judges.
S YKES , Circuit Judge. Travis Robinson pleaded guilty
to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The day he was arrested, Robinson
also may have fired the gun several times while standing on
his front porch. He did not admit this conduct, though—at
least not in court—and the indictment did not charge it.
At sentencing, which occurred after United States v.
Booker, 125 S. Ct. 738 (2005), the government asked the
judge to find by a preponderance of the evidence that
Robinson had indeed fired his gun from his front porch.
Such a finding would have meant that Robinson possessed
a firearm in connection with another felony—specifically,

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2 No. 05-2224
criminal recklessness in violation of section 35-42-2-2 of the
Indiana Code—and would have provided the basis for a
four-level enhancement to Robinson’s advisory sentencing
range under the sentencing guidelines. See U.S.S.G.
§ 2K2.1(b)(5); Booker, 125 S. Ct. at 767 (District courts,
while no longer bound by the sentencing guidelines, “must
consult those Guidelines and take them into account
when sentencing.”). Rather than make a finding on the
matter, however, the district judge denied the enhancement
“in the interest of caution” because the indictment did not
charge, nor did Robinson admit, that he had fired the gun.
The judge calculated a guidelines range of 51-63 months
and sentenced Robinson to 51 months, the low end of the
advisory range. Had the judge made a finding that Robin-
son fired the gun and therefore possessed it in connection
with another felony, the advisory guidelines range would
have been 77-96 months. The government appealed the
sentence.
Discussion
The district judge offered the following explanation for his
refusal to make a finding on whether Robinson fired his
gun: “[I]n the post-Booker world, [the court] has the discre-
tion to sentence outside the Guideline range as long as the
sentence is reasonable. . . . [But] in the interest of caution,
the Court is reluctant to grant a four level enhancement
based on facts not charged in the indictment, proven to a
jury beyond a reasonable doubt, or admitted by the defen-
dant.” That was error.
Our cases since Booker have explained the steps in
criminal sentencing now that the sentencing guidelines
are advisory. There are two: 1) calculate the appropriate
advisory guidelines range; and 2) decide whether to im-
pose a sentence within the range or outside it, by refer-
ence to the factors set forth in 18 U.S.C. § 3553(a). The first

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No. 05-2224 3
step is no different now than it was before Booker.
See United States v. Cunningham, 429 F.3d 673 (7th Cir.
2005); United States v. Rodriguez-Alvarez, 425 F.3d 1041,
1046 (7th Cir. 2005); United States v. Dean, 414 F.3d 725,
727 (7th Cir. 2005); United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005). District judges must resolve dis-
puted factual issues, see F ED . R. C RIM . P. 32(i)(3)(B);
U.S.S.G. § 6A1.3(b) (2004), determine relevant conduct by a
preponderance of the evidence, and apply the appropriate
sentence enhancements in order to compute the advisory
guidelines sentence range. Dean, 414 F.3d at 727.
Step two is the discretionary decision whether to sentence
the defendant within the advisory range or outside it. If the
judge is inclined to impose a sentence outside the advisory
guidelines range, or if a sentence within the range is
challenged as unreasonable, the judge must explain why
the sentence imposed is appropriate in light of the statutory
factors specified in § 3553(a). Cunningham, 429 F.3d at
675-76; George, 403 F.3d at 473.
We then review sentences for reasonableness. Booker,
125 S. Ct. at 765. Post-Booker, we continue to review the
district court’s fact-finding for clear error and its inter-
pretation of the guidelines de novo. United States v.
Baldwin, 414 F.3d 791, 798 (7th Cir. 2005). Sentences
within a properly calculated guidelines range are presumed
reasonable. United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Though entitled to a presumption of
reasonableness, sentences within the guidelines range that
are challenged as unreasonable must be shown to conform
with § 3553(a) sentencing factors. Cunningham, 429 F.3d at
675-76; see also United States v. Williams, 425 F.3d 478 (7th
Cir. 2005). Those outside the range are not entitled to any
presumption—they are measured for reasonableness based
on their conformity with the sentencing factors of § 3553(a).
Cunningham, 429 F.3d at 675.

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4 No. 05-2224
When a judge does not properly calculate a guidelines
sentence, our review for reasonableness is forestalled.
United States v. Bokhari, 430 F.3d 861, Nos. 05-1302 &
05-1303, Slip op. at 3-4 (7th Cir. Dec. 6, 2005). Guidelines
ranges must be determined correctly as a matter of
law—that much is implicit in Booker’s remedial holding.
After all, if sentencing judges are obliged to consider
guidelines ranges, though treating them as advisory, surely
they must consider properly calculated ranges, not just any
guidelines range that comports with the judge’s discretion-
ary judgment. Without proper guidelines calculations, we
cannot determine whether a sentence is entitled to the
rebuttable presumption of reasonableness or whether we
must search the district judge’s reasons for sentencing
outside the guidelines range.
The directive to properly calculate the advisory guidelines
sentence is not only for the defendant’s benefit.
The government, too, has an interest in a proper calcula-
tion. We have said before, mandatory or advisory, the
sentencing guidelines represent eighteen years of care-
ful thought about appropriate sentences for federal criminal
offenders. Mykytiuk, 415 F.3d at 607.
Here, the district judge was concerned that because the
firing of the gun was not charged, admitted, or found by
a jury, he would run afoul of the Sixth Amendment by
finding facts. True, Booker holds that judges may not find
facts that increase the maximum punishment and that
a mandatory sentencing guidelines scheme violates that
rule. But Booker resolved the problem by making the
guidelines advisory; judicial fact-finding in sentencing is
acceptable because the guidelines are now nonbinding.
Dean, 414 F.3d at 730; McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005).
In an overabundance of Sixth Amendment caution, the
district judge declined to determine whether Robinson fired

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No. 05-2224 5
his gun. By sidestepping this determination, the district
judge erred as a matter of law by failing to resolve a
disputed sentencing fact essential to a properly calculated
guidelines range.
Accordingly, we V ACATE Robinson’s sentence and
R EMAND the case to the district judge for resentencing
consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-13-06

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