In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3638
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE WELCH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 818—Blanche M. Manning, Judge.
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SUBMITTED OCTOBER 25, 2005—DECIDED NOVEMBER 21, 2005
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Before FLAUM, Chief Judge, and MANION and ROVNER,
Circuit Judges.
FLAUM, Chief Judge. Defendant-appellant Andre Welch
was convicted by a jury of bank robbery in violation of 18
U.S.C. § 2113. The district court sentenced Welch to 160
months in prison. When imposing the original sentence, the
district court considered the seriousness of Welch’s past
criminal conduct and granted the government’s motion for
an upward departure under section 4A1.3 of the sentencing
2 No. 03-3638
guidelines. U.S.S.G. § 4A1.3. This upward departure
increased the defendant’s criminal history category from a
IV to a VI based upon the district court’s finding, by a
preponderance of the evidence, that the defendant had
committed four other bank robberies. The district court also
increased the defendant’s Guideline range from a 27 to a 28
to reflect his criminal history. The district court imposed
this increase because it found 20 criminal history points,
which exceeded the bounds of criminal history category VI.
In addition, the district court imposed a two-level enhance-
ment for obstruction of justice. U.S.S.G. § 3C1.1. This
enhancement was imposed because Welch submitted false
documentation in which he claimed to have been honorably
discharged from the military when in fact he had been
given an involuntary discharge for drug abuse and failing
to comply with a drug rehabilitation program. In all,
Welch’s guideline range was increased from an original
range of 84-105 months to a new range of 140-175 months.
On March 24, 2005, this Court ordered a limited remand
to the district court pursuant to United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), to determine whether that
court would have imposed the same sentence had it under-
stood that the Guidelines were advisory. After considering
the briefs of both parties as well as the factors in 18 U.S.C.
§ 3553(a), the district court indicated that it would have
imposed the same sentence under an advisory guidelines
regime.
Defendant Welch argues that the district court’s reimposi-
tion of the original sentence would be unreasonable be-
cause: (1) the district court committed error by enhancing
Welch’s sentence based on facts not supported by the
judicial record, in violation of Shepard v. United States, 125
S.Ct. 1254 (2005); and (2) the district court did not use a
“beyond a reasonable doubt” standard in making factual
findings at sentencing.
In Shepard v. United States, the Supreme Court found
No. 03-3638 3
that a sentencing court may not look to police reports and
other documents to determine whether a particular prior
conviction would increase a defendant’s sentence under the
Armed Career Criminal Act (“ACCA”). 125 S.Ct. 1254
(2005).1 This decision is inapplicable to the instant case.
The district court acted properly by considering evidence of
the defendant’s prior crimes.
In the district court’s September 22, 2003 memorandum
and order, the court found:
After reviewing all of the evidence, this Court finds that
the Government has put forth sufficient “reliable”
evidence to show by a preponderance of the evidence
that Welch committed the three bank robberies at Tech
Federal on February 7, March 25[,] and May 20, 1997,
and the robbery of the Bank of Homewood on July 8,
1997. While no one piece of evidence clearly implicates
Welch, the totality of the evidence meets the preponder-
ance of the evidence standard. Of particular importance
to this Court is the black jacket found at his residence,
the yellow hard hat, the statement to Austin, and the
bank surveillance photos. Moreover, even discrediting
the identification by Judith Welch and the teller, this
Court finds that their identification of Welch is sound.
After closely observing Welch at the trial and the
sentencing hearing and closely comparing him to the
1
Under ACCA a higher sentence is allowable for previous
convictions that include a drug offense or violent felony. The
ACCA states that burglary is a violent felony if committed in a
building or enclosed space, but burglary is not a violent felony if
committed on a boat or in a motor vehicle. The district court
inappropriately used police reports to determine the nature of the
defendant’s past burglary conviction. A court determining the
nature of a burglary conviction is limited to examining statutory
language, charging documents, transcripts of plea colloquies, plea
agreements, and factual findings by the trial court to which the
defendant assented.
4 No. 03-3638
bank surveillance tapes, this Court firmly believes that
Welch is the robber in those photographs.
The evidence referred to by the district court at sentenc-
ing was not of the type excluded under Shepard. Rather, the
evidence referred to was presented by the prosecution
during the course of the trial and the sentencing hearing.
Furthermore, unlike Shepard, where a finding by the
district court had the potential to increase a defendant’s
sentence from a 37-month maximum to a 15-year minimum
under the ACCA, the district court’s determination in the
instant case that Welch had committed prior crimes did not
alter the statutory minimum or maximum. See 18 U.S.C. §
2113.
Welch also claims that the district court failed to use the
proper standard of proof in evaluating the sentence en-
hancement. In the context of a sentencing enhancement, a
district court may consider evidence of a prior crime
without proof beyond a reasonable doubt. McReynolds v.
United States, 397 F.3d 479, 481 (7th Cir. 2005)
(“[D]ecisions about sentencing factors will continue to be
made by judges, on the preponderance of the evidence, an
approach that comports with the sixth amendment so long
as the guideline system has some flexibility in applica-
tion.”).
The district court’s explanation of its original sentence
and its decision not to alter that sentence on remand was
sufficient. The district court’s sentence is within the
Guidelines range, and the district court was not obligated
to provide this Court with a detailed explanation of its
consideration of each of the relevant factors. See United
States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005) (sen-
tencing judge’s “duty ‘to consider’ the statutory factors is
not a duty to make findings”); United States v. George, 403
F.3d 470, 472-73 (7th Cir. 2005) (“[J]udges need not re-
hearse on the record all of the considerations that [18
U.S.C. § 3553(a)] lists, as it is enough to calculate the range
No. 03-3638 5
accurately and explain why (if the sentence lies outside it)
defendant deserves more or less.”).
Under the post-Booker sentencing regime, this Court
must ensure that the district court has considered the
factors contained in 18 U.S.C. § 3553(a). In defining the
extent of that review, we recently stated,
[O]ur role is not that of the sentencing court. “The
question is not how we ourselves would have resolved
the factors identified as relevant by section 3553(a).”
Furthermore, given the presumptive reasonableness of
sentences within the Guidelines range, we have ob-
served that it will be the rare sentence within the
Guidelines range that “stands out as unreasonable.”
United States v. Newsom, No. 03-3366, *4 (7th Cir. Nov. 2,
2005) (quoting United States v. Williams, No. 03-4091, *5
(7th Cir. Oct. 6, 2005)). After giving adequate consideration
to the § 3553(a) factors, the district court reinstated Welch’s
previous sentence, a sentence within the Guidelines range.
While more explanation is always better than less, no
evidence has been presented to indicate that Welch’s
sentence was the result of plain error.
The last inquiry for this Court is whether the defendant’s
sentence is reasonable. See Paladino, 401 F.3d at 484 (if the
district court indicates that it would reimpose the original
sentence, we will affirm the sentence against a plain-error
challenge provided that the sentence is reasonable). Any
sentence that is properly calculated under the Guidelines is
entitled to a rebuttable presumption of reasonableness.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). A defendant can rebut this presumption only by
demonstrating that her sentence is unreasonable when
measured against the factors set forth in § 3553(a). Id.
Welch has not met this burden.
The sentencing guideline range applied by the district
court provided for a sentence of 140-175 months. The
6 No. 03-3638
district court imposed a sentence near the center of that
range, 160 months. This sentence was justified by the
district court’s reiteration of the “egregious nature” of
Welch’s criminal record, the district court’s finding that
Welch would likely commit future crimes, the need to hold
Welch accountable, and the need to protect the community.
The record provides no reason to believe the sentence
imposed by the district court was unreasonable.
The district court properly limited its review during
Paladino remand to the record at the time of sentencing.
See Paladino, 401 F.3d at 484. We agree with the district
court that while Welch’s efforts post-sentencing to prepare
for life outside prison are commendable, such actions are
not appropriate for consideration during a Paladino
remand. United States v. Re, 419 F.3d 582, 584 (7th Cir.
2005) (“Post-sentencing events or conduct simply are not
relevant to th[e Paladino] inquiry.”).
Because the district court would have imposed the same
sentence post-Booker and because that sentence is reason-
able, we conclude that Welch’s sentence was not the result
of plain error. Accordingly, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-05