United States of America v. Krishnaswami Sriram

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2008
Decided April 23, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 05‐2752, 05‐2802
UNITED STATES OF AMERICA,
Plaintiff‐Appellant/Cross‐Appellee,
v.
KRISHNASWAMI SRIRAM,
Defendant‐Appellee/Cross‐
Appellant.
Appeals from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 00 CR 0894
John W. Darrah,
Judge.
O R D E R
In our opinion reported at 482 F.3d 956 (7th Cir. 2007), we remanded for
resentencing after determining that the district court had miscalculated Sriram’s guidelines
range and that any loss estimate of less than $1.4 million would be clearly erroneous. Before
Sriram was resentenced, however, the Supreme Court granted his petition for a writ of
certiorari, vacated our decision, and remanded the case to us (128 S. Ct. 1134 (2008)) for
reconsideration in light of Gall v. United States, 128 S. Ct. 586, (2007). Sriram insists that Gall
precludes this court from rejecting the district court’s loss calculation, while the government
argues that our ruling is consistent with Gall.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1

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Nos. 05‐2752, 05‐2802 Page 2
Just a few days before the Supreme Court remanded the case to us, we explained our
understanding of Gall, stating that the Court had “held that a sentence outside the
guidelines range must not be presumed unreasonable by the appellate court, which also
may not hogtie sentencing judges with a rigid formula for determining whether the
justification for an out‐of‐range sentence is ‘proportional’ to the extent of the sentence’s
deviation from that range.” United States v. McIlrath, 512 F.3d 421, 426 (2008). We further
explained that our decisions prior to Gall (and thus the decision vacating the sentence
imposed on the defendant in the present case) had been consistent with the standard laid
down by the Court in that case.
The defendant’s Rule 54 statement makes clear that he is challenging only our
reversal of the district judge’s loss estimate. That issue is unrelated to the scope of a district
judge’s sentencing discretion or of appellate review of the exercise of that discretion, the
issues in Gall. Nothing in that case entitles a judge to calculate the guideline range
erroneously, though once he has calculated it correctly he has discretion to sentence above
or below it as well as within it. It is the initial step at which the district judge stumbled, and
we cannot find anything in the Gall decision (nor does the defendant suggest anything) that
would allow us to overlook the stumble and affirm the sentence. We therefore reinstate our
previous opinion.

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