NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0061n.06
No. 08-4430 FILED
Jan 29, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
WILLIE D. ORR, ) THE NORTHERN DISTRICT OF
) OHIO
Defendant - Appellant. )
)
)
Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. The defendant, Willie Orr, pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court
calculated an advisory Sentencing Guidelines range of 57 to 71 months’ imprisonment. Orr
requested that his federal sentence run concurrently with a 24-month sentence that he was then
serving for an unrelated state conviction. The court denied that request, but stated that Orr’s state
sentence provided “grounds for me to vary from the guideline calculation to give you a somewhat
lower sentence[.]” The court then imposed a sentence of 42 months’ imprisonment to run
consecutively to the state sentence, adding that “42 months together with the state court conviction
will come just slightly under the guideline range[.]”
No. 08-4430
United States v. Orr
On appeal, Orr contends that the sentence imposed by the district court resulted from a
mathematical error. In particular, he argues that the court intended to select a sentence that, when
combined with his 24-month state sentence, would yield a total term of imprisonment just below the
advisory Guidelines range of 57 to 71 months. The 42-month sentence actually imposed, however,
yields a total term of 66 months, above the midpoint of the Guidelines range. The government
concedes that the district court’s statements at sentencing were ambiguous, and it has asked us to
remand the case for a full resentencing hearing.
Orr is unsatisfied with the government’s concession. In his reply brief, he argues for a
limited remand to permit the district court to clarify the apparent conflict between its statements at
sentencing and the sentence it actually imposed, and then to consider whether to reduce the federal
sentence or to run it concurrently with the state one.
That argument is puzzling. In his opening brief, Orr also argued that the district court had
imposed an unreasonable sentence within the meaning of United States v. Booker, 543 U.S. 220
(2005)—an argument that, if accepted, would have required a full resentencing. In short, the
government’s concession grants Orr the very relief he initially requested.
In any event, we agree with the government that a full resentencing is appropriate. The
problem in this case is that the district court’s statements at sentencing did not correspond to the
sentence it imposed. From our vantage point, however, it is impossible to say whether the district
court made a mathematical error in calculating Orr’s sentence or whether it misspoke when it stated
that the total sentence would be just below Orr’s Guidelines range. Under these circumstances, we
think it best to afford the district court full authority to select an appropriate sentence on remand.
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No. 08-4430
United States v. Orr
Because our decision moots Orr’s remaining challenges to his sentence, we express no view
on their merits. Orr’s sentence is vacated, and the case is remanded for resentencing consistent with
this opinion.
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