In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1261 & 11-1602
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARLYN J. B ARNES and M ELVIN B. T AYLOR,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 06 CR 00023—Theresa L. Springmann, Judge.
A RGUED S EPTEMBER 27, 2011—D ECIDED O CTOBER 25, 2011
Before F LAUM, K ANNE, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Upon re-sentencing, a district
court judge respectively sentenced Marlyn Barnes and
Melvin Taylor to 292 months and 188 months of impris-
onment for conspiring to possess with intent to dis-
tribute more than five kilograms of cocaine. In a succes-
sive appeal before this Court, Barnes and Taylor
challenge those sentences. They argue that, in light of
the Supreme Court’s recent decision in Pepper v. United
2 Nos. 11-1261 & 11-1602
States, 131 S. Ct. 1229 (2011), the district court did not
properly entertain new arguments when it re-sentenced
them. They also advance that the district court abused
its discretion by re-sentencing them to the same
number of months to which it sentenced them originally.
Notably, these new sentences remain within Guideline
range.
We affirm the judgment of the district court.
I. Background
A. Factual Background 1
Barnes and Taylor, with four other men, conspired to
steal a shipment of drugs from a stash house in Fort
Wayne, Indiana. They learned about their intended
target from a confidential informant for the government,
which had concocted the shipment and instructed its
informant to provide Barnes and Taylor with the
fictional details. In reality, no such shipment existed.
Unaware of the government’s involvement, Barnes and
Taylor persisted in their planning and, ultimately, pro-
cured the necessary equipment and weaponry to exe-
cute the theft. The government arrested them and their
associates on May 5, 2006, as they arrived at a storage
facility to pick up a van they intended to use in the heist.
1
Though not relevant to this appeal, a more extensive descrip-
tion of the facts underlying the conspiracy may be found at
United States v. Barnes, 602 F.3d 790, 792 (7th Cir. 2010)
and United States v. Taylor, 600 F.3d 863, 866-67 (7th Cir. 2010).
Nos. 11-1261 & 11-1602 3
Upon searching the men and their vehicles, the gov-
ernment uncovered two bullet-resistant vests, a Keltec
automatic rifle, magazines and twenty-three rounds of
ammunition for the Keltec rifle, a stolen Norinco
assault rifle, a 75-round magazine and ninety-nine addi-
tional rounds of ammunition for the Norinco rifle, a
loaded nine-millimeter pistol, thirty-six rounds of nine-
millimeter ammunition, a loaded .40-caliber pistol, forty-
six rounds of .40-caliber ammunition, and three addi-
tional 12-round magazines.
B. Procedural Background
The government indicted Barnes, Taylor, and their
co-conspirators on May 24, 2006. It charged all six partici-
pants with conspiring to possess with intent to distribute
more than five kilograms of cocaine, 21 U.S.C. § 846. It
also charged Barnes and Taylor with possessing a
firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c).
Barnes, Taylor, and two of their co-conspirators pro-
ceeded to trial. The original proceeding resulted in a
mistrial because Barnes offered to testify on behalf of
Taylor and the other two co-conspirators. The district
court accordingly severed the defendants’ trials, at
which time the two remaining co-conspirators pled guilty.
Barnes and Taylor continued to trial. A jury convicted
Barnes on the conspiracy and gun counts. In a separate
trial, a jury convicted Taylor on both counts as well. In
each trial, the juries found by special verdict that the
4 Nos. 11-1261 & 11-1602
amount of drugs involved in the conspiracy exceeded
five kilograms of cocaine.
1. Sentencing and The First Appeal
As it sentenced Barnes and Taylor’s four co-conspir-
ators, the district court found that the conspiracy
involved five-to-fifteen kilograms of cocaine. It, thus,
calculated their base offense levels at 32.
a. Barnes’ Proceedings
The initial pre-sentence report for Barnes similarly
recommended a base offense level of 32, treating the
conspiracy as involving five-to-fifteen kilograms of
drugs. However, the probation officer revised the
pre-sentence report to reflect a drug quantity of forty
kilograms. Barnes objected to this quantity.
The district court ordered further briefing on the drug
amount, but, rather than file additional materials,
Barnes and the government stipulated that the con-
spiracy involved five-to-fifteen kilograms.
At sentencing, the district court rejected this stipula-
tion and found that the conspiracy involved forty kilo-
grams of cocaine. This finding raised Barnes’ base
offense level to 34. The district court refused to accept
the stipulation because it viewed itself as unconstrained
by the factual findings in the co-conspirators’ sen-
tencing proceedings. It wished to issue an independent
finding on the quantity of drugs for which Barnes was
Nos. 11-1261 & 11-1602 5
responsible. Yet, the district court also chose to sen-
tence Barnes at the low end of his Guideline range
because, it reasoned, there was no reason to treat him
differently than his co-conspirators with regard to the
amount of drugs involved. Once his enhancements were
considered, the court sentenced Barnes to 292 months.
Barnes appealed, contesting the district court’s finding
that, for him, the conspiracy involved forty kilograms
of cocaine and not five-to-fifteen kilograms. This Court
agreed that such unjustified, disparate treatment among
co-conspirators was clear error. We vacated Barnes’
sentence and remanded to the district court for
re-sentencing.
b. Taylor’s Proceedings
Taylor’s pre-sentence report recommended that the
conspiracy involved forty kilograms of cocaine. Taylor
objected to this amount and suggested that the con-
spiracy involved five-to-fifteen kilograms. At sen-
tencing, the district court overruled Taylor’s objection
and found that the amount of cocaine involved was
forty kilograms. It, therefore, calculated his base offense
level as 34. Enhancements raised his base offense level
to 36, resulting in an advisory Guideline range of 188 to
235 months of incarceration.
To minimize potentially unequal treatment of the
co-conspirators based upon drug quantity, the district
court sentenced Taylor to the low end of his Guideline
range. He received a 188-month sentence.
6 Nos. 11-1261 & 11-1602
Taylor appealed, alleging that the district court com-
mitted clear error when it determined that the amount
of cocaine attributable to the conspiracy was forty kilo-
grams. This Court agreed, again viewing as unacceptable
the inconsistent factual finding on the amount of drugs
involved. As we did in Barnes’ case, we vacated Taylor’s
conviction and remanded his case for re-sentencing.
2. Re-Sentencing
Upon re-sentencing, the district court dismissed as
waived or beyond the scope of remand all new argu-
ments raised by Barnes and Taylor.
a. The Scope of Remand for Barnes’ Re-Sentencing
In our opinion on Barnes’ first appeal, we addressed
only his argument that the lower court erred in rejecting
the parties’ stipulation that the conspiracy involved
five-to-fifteen kilograms of cocaine. United States v.
Barnes, 602 F.3d 790, 792, 796 (7th Cir. 2010) (“Barnes’s
argument focuses on the fact that his co-defendants who
pleaded guilty and were sentenced before him were
sentenced based on the finding that the conspiracy
only involved five-to-fifteen kilograms of cocaine.”). We
agreed with Barnes’ argument, holding that “[w]ith-
out any justification for why one co-conspirator is re-
sponsible for a greater quantity of drugs than his
fellow co-conspirators, such a discrepancy in factual
findings is clearly erroneous.” Id. at 796. We vacated
his sentence and generally remanded his case for
Nos. 11-1261 & 11-1602 7
re-sentencing. Id. at 797 (“[W]e vacate the district court’s
sentence of 292 months, and remand for re-sentencing.”).
On remand, the district court interpreted our
opinion as an order to “resolve the discrepancy in
factual findings” used when it sentenced Barnes. The
district court understood this discrepancy to be its
“incongruou[s] reject[ion] [of] the parties’ post-trial
joint stipulation that the conspiracy involved between 5
and 15 kilograms of cocaine . . . .” The district court
re-sentenced Barnes using the post-trial stipulation
to calculate his Guideline range. It sentenced Barnes
anew to 292 months of imprisonment for the conspiracy
count of the indictment.
b. Barnes’ Waived Arguments
At re-sentencing, the district court dismissed as waived
several new arguments Barnes raised in his post-remand
sentencing brief. Barnes asked the court to disregard the
parties’ stipulation that the conspiracy involved between
five-to-fifteen kilograms and, instead, treat the drug
quantity at issue as less than 25 grams. He felt the
larger drug quantity overstated his criminality. He addi-
tionally argued that, due to the fictitious nature of the
drugs and the government’s ability to dictate the
amount, the court should treat the amount of drugs
involved as zero grams or find that he could not have
completed the conspiracy. Finally, he requested that
the court reconsider his four-level enhancement
for being an organizer or leader of five or more
participants in the commission of an offense, as well
8 Nos. 11-1261 & 11-1602
as his two-level enhancement for willful obstruction
of justice.
The court rejected Barnes’ argument that the amount
of drugs involved should be considered less than the
amount to which his co-conspirators stipulated be-
cause “[the argument] d[id] not appear to have been . . .
raised on appeal, and the Court of Appeals did not ex-
plicitly discuss it.” The court also noted that even if
the argument were not waived, it “would not find it
to have any merit.”
The court similarly disregarded Barnes’ subsidiary
argument that he was incapable of producing any
drug amount. The court found that this argument, too,
“was not raised on appeal and [w]as outside the scope
of remand.” As before, the court elaborated that “had
the issue been properly raised, and remanded for [its]
determination, [it] would [have] reject[ed] it.”
With respect to his objection to its sentence enhance-
ments, the district court held that Barnes “could have
appealed the application of these enhancements [during
his first appeal].” Since he did not do so, the court ruled
that he waived his arguments against them such that
“they d[id] not fall within the permissible areas of dis-
cussion . . . on remand.”
The district court excluded each of these arguments
as ones that could have been raised in his first appeal,
were not so raised, and, therefore, were beyond the
scope of this Court’s remand.
Nos. 11-1261 & 11-1602 9
c. The Scope of Remand for Taylor’s Re-Sentencing
As with Barnes, the only sentencing issue we confronted
on Taylor’s appeal was whether the district court errone-
ously calculated his Guideline range based upon forty
kilograms of cocaine. United States v. Taylor, 600 F.3d
863, 870-71 (7th Cir. 2010). We agreed with Taylor:
The district court . . . sentenced . . . four co-conspirators
on the finding that the conspiracy involved
five-to-fifteen kilograms of cocaine. Then, at the
sentencing hearings for Barnes and Taylor, the
district court found that the conspiracy involved
forty kilograms of cocaine. . . . [W]ithout a justification
for treating these co-defendants differently when
determining the amount of drugs attributable to
the conspiracy, it was clear error for the district
court to find one drug quantity for [the four
co-defendants], and a different drug quantity for
Taylor on an identical record.
Id. at 871-72. We vacated Taylor’s sentence and ordered
a general remand for re-sentencing. Id. at 872 (“We
vacate Taylor’s sentence and remand for re-sentencing.”).
The district court understood the remand order as in-
structions to re-sentence Taylor based on a drug
quantity consistent with that attributed to his
co-conspirators: “[t]he sufficiency of the factual support
for using forty kilograms to determine the base offense
level was not the issue that ultimately required remand.
Rather, it was . . . the sentencing of other co-conspirators
on the basis of factual stipulations for between five and
fifteen kilograms of cocaine.” Consequently, the court
recalculated Taylor’s Guideline range using five-to-fifteen
10 Nos. 11-1261 & 11-1602
kilograms as the pertinent drug quantity. It re-sentenced
him to 188 months in prison for the conspiracy count of
the indictment.
d. Taylor’s Waived Arguments
In his post-remand re-sentencing brief, Taylor raised
new arguments that the district court dismissed as
waived. He asked that the court sentence him based on
a drug quantity of 25 grams or fewer or, alternately, of
two to three-and-a-half kilograms. He argued that these
reduced amounts were appropriate given the fictitious
nature of the drugs involved, the government’s control
over the amount of drugs in the fake shipment, and
his smaller role in the conspiracy.
As an initial matter, the district court rejected these
arguments because they “d[id] not appear to have been . . .
raised on appeal, and the Court of Appeals did not ex-
plicitly discuss [them].” However, the court also noted
that “[e]ven if [the arguments] were proper to address
on remand because [they] related to the drug quantity,
the [c]ourt would not find [them] to have any merit.”
In particular, the court found that the government “estab-
lished, by a preponderance of the evidence, that the
conspiracy to possess with intent to deliver cocaine
involved, at least, between five and fifteen kilograms
of cocaine.”
As it did with Barnes, the district court viewed Taylor’s
arguments as waived and beyond the scope of remand.
Both Barnes and Taylor appeal their sentences.
Nos. 11-1261 & 11-1602 11
II. Discussion
A. The Scope of Remand and the Impact of Pepper
v. United States
We first address whether the district court improperly
determined the scope of remand when it refused
to entertain Barnes and Taylor’s new arguments at re-
sentencing. In particular, we consider whether Pepper
v. United States, 131 S. Ct. at 1229, abolishes waiver in
the context of re-sentencing or whether “de novo”
re-sentencing retains a more limited meaning. We
conclude that, upon a general remand for re-sentencing,
a district court may permit new arguments and evidence
as it deems necessary to re-fashion its sentence. General
remand does not, however, entitle the defendants
to present new arguments and evidence beyond that
pertinent to the issues raised on appeal.2
We review a district court’s determination of the scope
of remand de novo. United States v. Husband, 312 F.3d
247, 251 (7th Cir. 2002) (citing United States v. Watson,
189 F.3d 496, 500 (7th Cir. 1999)).
1. The Scope of a General Remand for Re-Sentencing
This Court’s decision to remand and our corresponding
opinion dictate the scope of that remand. United States
2
This case does not present the question of whether a district
court must consider post-sentencing rehabilitation upon a
general remand for resentencing. We, therefore, reserve the
issue.
12 Nos. 11-1261 & 11-1602
v. Avila, 634 F.3d 958, 961 (7th Cir. 2011). If this Court
remands to correct a “discrete, particular error that can
be corrected . . . without . . . a redetermination of other
issues, the district court is limited to correcting that
error.” United States v. Parker, 101 F.3d 527, 528 (7th Cir.
1996). The Court’s silence on an issue raised on appeal
means “it is not available for consideration on remand.”
See Husband, 312 F.3d at 251 (citing Barrow v. Falck, 11
F.3d 729, 730 (7th Cir. 1993)). Moreover, any issue that
could have been raised on appeal but was not is waived
and, therefore, not remanded. See Husband, 312 F.3d at
250-51; see also Parker, 101 F.3d at 528 (“A party cannot
use the accident of a remand to raise in a second appeal
an issue that he could just as well have raised in the
first appeal because the remand did not affect it.”).
a. The Impact of Pepper v. United States
Barnes and Taylor contend that they were entitled to
the district court’s consideration of any and all argu-
ments they raised upon re-sentencing. They refer this
Court to the Supreme Court’s recent decision in Pepper
v. United States, 131 S. Ct. at 1229, which they read
as holding that an order for general remand by the
Court of Appeals erases the original sentencing pro-
ceeding and, with it, any issues of waiver.
In Pepper, the Supreme Court denied the appellant’s
claim that the “law of the case” doctrine prevented a new
judge, upon re-sentencing, from disturbing the prior
sentencing judge’s downward departure from the defen-
Nos. 11-1261 & 11-1602 13
dant’s recommended Guideline sentence. Pepper, 131
S. Ct. at 1251. The Court equated general remands
for re-sentencing to an order for de novo re-sentencing,
noting that such orders “effectively wiped the slate
clean.” Id. at 1250-51. As such, it concluded, “an appel-
late court when reversing one part of a defendant’s sen-
tence ‘may vacate the entire sentence . . . so that, on
remand, the trial court can reconfigure the sentencing
plan . . . to satisfy the sentencing factors in 18 U.S.C.
§ 3553(a).’ ” Id. at 1251 (quoting Greenlaw v. United States,
554 U.S. 237, 253 (2008)).
At issue, then, is what the Pepper Court intended by
the term “de novo” in the re-sentencing context.
Barnes and Taylor interpret the Court’s dicta that
general remand orders “wipe the slate clean” as en-
titling them to present any and all new arguments at
re-sentencing—regardless of their relevance to the
error giving rise to the remand.
Although few courts have yet to apply Pepper, and
the Supreme Court has not yet defined the scope of
this case, no court has concluded that Pepper operates
to abolish waiver in the context of re-sentencing. 3 As it
3
Even the Sixth and Tenth Circuits, which adopt a more lenient
view of the scope of remand than does the Seventh Circuit,
do not interpret Pepper as eliminating waiver. See United States
v. West, 646 F.3d 745, 749 (10th Cir. 2011) (favoring, in a
post-Pepper regime, a rule whereby a district court “do[es] not
make inquiry into whether the issue presented is antecedent
(continued...)
14 Nos. 11-1261 & 11-1602
discusses de novo re-sentencing, the Court emphasizes
a district court’s ability to “effectuate its sentencing
intent,” id. at 1251, underscoring its concern that
re-sentencing courts should not be bound by their prede-
cessors or rotely input the Court of Appeal’s changes
into their original sentencing calculations. Its holding
thus stands for the proposition that general remands
render a district court unconstrained by any element of
the prior sentence. Id.
Allowing a district court to freely balance already
and properly raised arguments to preserve or revise
its sentencing objectives does not equate to carte blanche
for defendants to raise new arguments unrelated to the
issues raised on appeal. To the contrary, the only new
evidence that the Supreme Court considered and
approved of is that of a defendant’s postsentencing re-
habilitation. Id. at 1236 (“We hold that when a defen-
dant’s sentence has been set aside on appeal, a district
court at resentencing may consider evidence of the de-
3
(...continued)
to or arises out of the correction on appeal. Instead the district
court is to look to the mandate for any limitations on the
scope of the remand and, in the absence of such limitations,
exercise discretion in determining the appropriate scope”) (emphasis
added); see also United States v. Garcia-Robles, 640 F.3d 159,
166 (6th Cir. 2011) (holding, in a post-Pepper regime, that “[a]
general remand allows the district court to re-sentence the
defendant de novo, which means that the district court may . . .
conside[r] new evidence and issues” (quoting United States v.
Moore, 131 F.3d 595, 597-98 (6th Cir. 1997))) (emphasis added).
Nos. 11-1261 & 11-1602 15
fendant’s postsentencing rehabilitation . . . .”). Barnes
and Taylor attempt to expand the Pepper Court’s
holdings so that, upon general remand, a defendant
enjoys a manifest right to raise new issues. We decline the
invitation to do so. See, e.g., United States v. White, 406
F.3d 827, 831-32 (7th Cir. 2005) (“Our case law has charac-
terized the scope of the remand issue using two
analogies: (1) that upon remand the district court is
presented with a ‘clean slate’ or (2) the district court
may ‘unbundle the sentencing package.’ There is no
meaningful distinction in this phraseology.”).
We, therefore, hold that when a case is generally re-
manded to the district court for re-sentencing, the
district court may entertain new arguments as necessary
to effectuate its sentencing intent, but it is not obligated
to consider any new evidence or arguments beyond
that relevant to the issues raised on appeal. Accordingly,
the district court did not err by refusing to consider
Barnes and Taylor’s new arguments as beyond the scope
of remand.
2. Harmless Error Applies
Assuming arguendo that the district court should have
considered Barnes and Taylor’s new arguments within
the scope of remand, its error is harmless. See, e.g., United
States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008) (ap-
plying harmless error analysis to sentencing). An error
is harmless if it “did not affect the district court’s
selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992). The district court in this
16 Nos. 11-1261 & 11-1602
case examined both defendants’ waived arguments and
explained why they would not prevail even if it had
formally reached their merits. See discussion supra Part
I.B.2b, d. Since it expressly stated that these arguments
would not have altered the sentences it pronounced,
any error is harmless.
B. Abuse of Discretion
Barnes and Taylor also appeal their sentences as the
result of procedural error and as unreasonable. Accord-
ingly, they argue that the district court abused its discre-
tion by imposing them.
Our review of a district court’s sentencing decision is
a two-step analysis. United States v. Hall, 608 F.3d 340,
346 (7th Cir. 2010). First, we review de novo any alleged
procedural error. Id. Second, we examine the reasonable-
ness of a sentence imposed by a district court for abuse
of discretion. United States v. Boling, 648 F.3d 474, 483
(7th Cir. 2011).
1. Procedural Error in the Application of 18 U.S.C.
§ 3553(a)
Barnes and Taylor each claim that the district court
committed procedural error when it failed to consider
mitigating evidence about their background, character,
and conduct. See generally Boling, 648 F.3d at 483 (listing
failure to consider the factors listed in 18 U.S.C. § 3553(a)
as procedural error).
Nos. 11-1261 & 11-1602 17
a. Barnes’ Family Circumstances
Barnes contends that the district court refused to
exercise its discretion to reduce his sentence based on
the “hardship his children would suffer as a result of
his incarceration.” He suggests that the court wrongly
disregarded the hardship on his children as the result
of his own conduct, thereby affording the argument
insufficient consideration.
At Barnes’ re-sentencing, the district court made the
following comments in response to his mother’s testi-
mony and his request that it consider his family circum-
stances as mitigating evidence:
[E]very time somebody is sentenced in this court
or any other court and has to leave their family, it
does work a hardship not only on the individual
offender like Mr. Barnes, but on the entire family.
And that’s the consequence of the conduct. And it’s
the consequence of what our system of judgment
provides in having to sentence somebody to do a
term of incarceration like Mr. Barnes, there will be
these kinds of sad circumstances. . . . But that cannot
be a justification or a reason for the Court to do
other than what the law provides and allows for in
terms of what the Court can do for sentencing,
because the circumstances of this family are similar
to others who have to go through this process,
because a loved one has been sent to jail.
In Barnes’ view, the district court summarily rejected
his family circumstances as mitigating evidence because
he was responsible for imposing that hardship upon his
18 Nos. 11-1261 & 11-1602
family. In doing so, he argues, the district court ran afoul
of this Court’s ruling that “the fact that the consequences
of incarceration are attributable to [a defendant’s] own
misconduct may be a factor in the analysis but . . . not
the sole factor nor [the] dispositive one.” United States
v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008).
However, the district court’s explanation for its
sentence calculation counsels against Barnes’ interpreta-
tion of its earlier comments. As the court announced
its ruling, it stated:
The first factor I assessed was the seriousness of the
offense. I noted that this case involved a plan to carry
out the armed robbery of other armed individuals . . . .
Mr. Barnes also anticipated selling a large quantity
of drugs into the community. The fact that Mr. Barnes
had high capacity weapons and bullet proof vests,
further spoke to the violent potential of his crime
and his willingness and preparedness to engage in
that violence. . . . I also addressed the need to promote
respect for law, noting that Mr. Barnes not only
shunned the law for his own gain as a get-rich-quick-
scheme, but recruited others into his criminal activ-
ity. I note further that Mr. Barnes noted an
absolute disregard for the law when his committed
perjury . . . . I noted at sentencing that Mr. Barnes’
criminal activity had escalated . . . . In consideration
of these factors, I believed that a sentence of 292
months was the sentence that best took into account
all the purposes of punishment . . . . That same
belief holds true today. In consideration of mitigating
Nos. 11-1261 & 11-1602 19
factors, the Court . . . is sympathetic to [his] family
circumstances, but finds that they do not outweigh
the seriousness of the offense, or the need to impose
a sentence that adequately addressed the other pur-
poses of punishment.
The court declined to reduce Barnes’ sentence in light
of his family circumstances not because his conduct
created the hardship, but because his family difficulties
were not so extraordinary as to outweigh or mitigate
against the other § 3553(a) factors the court considered.
The court’s analysis does not, as Barnes alleges, give
short shrift to his family circumstances. Rather, it fully
considers his circumstances and deems them insuf-
ficient to merit a sentence reduction.
To this end, Barnes’ assertion that the court viewed
itself as legally unable to weigh the hardship on his
children and, therefore, failed to exercise its discretion
similarly lacks merit. Reading the court’s comments
at sentencing in their entirety, Barnes’ selected
phrases—“cannot be a justification,” “what the Court
can do for sentencing,” and “what the law provides
and allows for”—communicate the court’s unwillingness
to reduce his sentence based on family hardship, not
its legal inability to do so. In this case, the court’s refusal
to reduce Barnes’ sentence in light of other § 3553(a)
factors reflects judicial discretion, not its absence.
b. Taylor’s Criminal History and Character
Although he raises the argument as an attack on
his sentence’s reasonableness, Taylor maintains that his
20 Nos. 11-1261 & 11-1602
sentence does not adequately reflect his role in the con-
spiracy, absence of criminal history, and rehabilitative
prospects. The district court evaluated and declined to
apply these factors to reduce the sentence it imposed.
It stated in its opinion:
[T]he evidence is that the Defendant agreed with
others to rob a stash house to obtain drugs, was pre-
pared to carry out the plan, and expected to be suc-
cessful in the execution of the plan. He was not
puffing when he indicated, and then demonstrated,
his willingness to obtain the shipment of drugs by
force. He anticipated that the stash house would be
armed and took this factor into account in his plan,
arriving in Fort Wayne with firearms, ammunition,
and additional people who were willing to help
him carry out the plan. He met with the other con-
spirators to discuss the details of the plan, including
who would enter the stash house and who would
stand guard. . . . [T]here are no mitigating factors that
suggest a sentence of 188 months is greater than
necessary to accomplish the purpose of punishment.
The Defendant notes that he participated in the
Federal Job Corp Program and was employed at a
cabinet company. The Defendant’s participation in
the Job Corp ended in 2001 as did his employment
and [he] does not indicate what he did from 2001
until May 2006 when he conspired to possess with
intent to distribute cocaine. . . . The Court does not find
the Defendant’s vocational training and minimal
employment to be a mitigating factor that justifies
reducing his sentence. The Defendant’s lack of crim-
Nos. 11-1261 & 11-1602 21
inal history, which he also points to as a mitigating
factor, is already accounted for in his advisory Guide-
line range and in this Court’s imposition of 188
months imprisonment.
The district court examined the mitigating evidence
that Taylor presented. It incorporated his criminal
history into his base Guideline range and afforded no
reductive weight to his participation in the conspiracy
or history in the Job Corp. Accordingly, it properly con-
sidered the sentencing factors as required by § 3553(a)
and committed no procedural error. See United States v.
Ruzzano, 247 F.3d 688, 699 (7th Cir. 2001) (“We will not
find an abuse of discretion where, as here, the defendant
merely disagrees with the weight that the district judge
assigned to various mitigating factors.”).
2. Reasonableness
Both Barnes and Taylor’s sentences are substantively
reasonable. A correctly calculated, within-Guidelines
sentence is entitled to a presumption of reasonableness.
United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010).
To sustain the presumption, a district court need
provide only a justification for its sentence “adequate
to allow for meaningful appellate review and to
promote the perception of fair sentencing.” United States
v. Scott, 555 F.3d 605, 608 (7th Cir. 2010) (quoting United
States v. Omole, 523 F.3d 691, 698 (7th Cir. 2008)) (internal
quotation marks omitted).
Barnes does not dispute the substantive reasonableness
of his sentence.
22 Nos. 11-1261 & 11-1602
Taylor argues that re-sentencing him to the same
188 months to which he was originally sentenced cannot
be reasonable because, based on all of the same evi-
dence except a lower drug amount, the court subjects
him to the high end of his new Guideline range when
it previously found him entitled to be sentenced on the
low end of his Guideline range. He states that his
new sentence “fails to reflect (to his advantage) the only
variable that changed between May[] 2009 and his re-
sentencing in March[] 2011; a lesser amount of cocaine
being attributable to the conspiracy.”
The Supreme Court, in Pepper, made clear that, on
general remand, a re-sentencing judge is not bound by
the findings of the original sentencing proceeding.
Pepper, 131 S. Ct. at 1250-51. Consequently, the district
court was not required to apply a low-end-of-the-Guide-
lines sentence simply because it had done so before.
In this case, the district court explained it imposed
the same 188-month sentence on Taylor because that
number of months remained necessary to reflect the
seriousness of the offense, to promote respect for the
law, and to protect others from Taylor’s crimes. It also
explained its decision to use the high end of the new,
lower Guideline range, stating that “the Court . . . first
imposed the 188-month sentence consider[ing] that the
amount of drugs used to determine the sentences of
other Codefendants involved in the same conspiracy
was less than 15 kilograms. It was for this reason that [it]
sentenced [Taylor] to the low end of the advisory
range that had been calculated using forty kilograms of
Nos. 11-1261 & 11-1602 23
cocaine.” The original 188-month sentence thus departed
from the 235 months available to the court in recognition
of the fact that the court used a lower drug quantity
to calculate his co-conspirators’ Guideline ranges. Since,
upon re-sentencing, all co-conspirators were sentenced
based on an consistent amount of drugs, the court
found no compelling reason to depart from the maxi-
mum sentence available to it under the new Guideline
range.
The district court’s analysis evinces the perception of
fair sentencing, Scott, 555 F.3d 608, and reasonableness.
It did not abuse its discretion by imposing upon Barnes
a 292-month sentence or upon Taylor a 188-month sen-
tence.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
10-25-11