United States of America v. Robert Ray Courtney

1 The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4083
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United States of America,
Appellee,
v.
Robert Ray Courtney,
Appellant.
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Appeal from the United States
District Court for the
Western District of Missouri.
[PUBLISHED]
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Submitted: September 9, 2003
Filed: April 5, 2004
Vacated: January 24, 2005
Reinstated: June 20, 2005
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Before LOKEN, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.
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PER CURIAM.
Robert Ray Courtney pleaded guilty to eight counts of product tampering
causing serious bodily injury and twelve counts of adulterating or misbranding drugs.
The district court 1 sentenced him to thirty years in prison, which was a three-level
upward departure from his Guidelines imprisonment range. Courtney appealed the

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extent of the upward departure. After reviewing the reasonableness of the extent of
the upward departure and concluding that it was reasonable, we affirmed Courtney’s
sentence. United States v. Courtney, 362 F.3d 497 (8th Cir. 2004).
Courtney petitioned the United States Supreme Court for a writ of certiorari.
The Supreme Court granted his petition, vacated our judgment, and remanded the
case for further consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). Courtney v. United States, 125 S. Ct. 989 (2005).
On remand, Courtney does not raise a Sixth Amendment challenge to his
sentence, nor does he challenge the constitutionality of the mandatory Guidelines
under which he was sentenced. He argues only that we should review his sentence
for reasonableness under Booker. Given the nature of his argument, we conclude that
Courtney’s case is unaffected by Booker because (1) our standard of review has not
changed and (2) the factual record has not changed.
First, we have held that the pre-Booker standard of review for a sentence that
resulted from a permissible departure is the same as the post-Booker standard of
review for all sentences: “whether the sentence imposed by the district court is
unreasonable, having regard for the factors to be considered in imposing a sentence,
as set forth in 18 U.S.C. § 3553(a); and the reasons for the imposition of the particular
sentence, as stated by the district court pursuant to the provisions of 18 U.S.C.
§ 3553(c).” United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir. 2005) (citing
Booker, 125 S. Ct. at 765 (internal marks omitted)).
Second, as Courtney concedes, we are limited to the record from his original
appeal. (Appellant’s Supp. Br. at 6.) Courtney notes certain mitigating factors that
he argues fall within § 3553(a): his assistance in creating a substantial restitution
pool, his family and community ties and contributions, his surrender of his
professional licenses, his cooperation with the government in three criminal cases and

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2 In light of this disposition, we need not address the government’s arguments
regarding the partial appeal waiver in Courtney’s plea agreement and Courtney’s
failure to preserve a Booker-type claim before the district court or this court.
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one civil case, his lack of criminal history, his sincere remorse, and his adjustment to
his conditions of confinement. (Appellant’s Supp. Br. at 8, Appellant’s Supp. Reply
Br. at 13-14.) These facts were brought to the district court’s attention in the context
of Courtney’s motion for a downward departure, which the district court denied when
it granted the government’s motion for an upward departure. (R. Doc. 119 at 29-33,
R. Doc. 128 at 1-6.) These facts were before us in the record in his original appeal.
Thus, given the narrow argument that Courtney makes on remand, we conclude
that Booker did not change anything about this case factually or legally.2 The
reasonableness inquiry that Courtney would have us undertake here would be an
empty exercise because it is identical to the inquiry that we already conclusively
resolved against him in the original appeal: we would look to the same factual
record, we would apply the same standard of review, and we would review his
sentence for reasonableness and conclude that it was reasonable. Courtney, 362 F.3d
at 500-04.
Accordingly, we reinstate our prior opinion and judgment affirming the
judgment of the district court. See United States v. Mohr, 407 F.3d 898, 899 (8th Cir.
2005) (upon remand by the Supreme Court for further consideration in light of
Booker, reinstating and refiling the panel’s earlier opinion after concluding that the
case was unaffected by Booker).
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