In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1257
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICHIE D EAN P ENNINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-30068—Richard Mills, Judge.
A RGUED JUNE 1, 2011—D ECIDED F EBRUARY 2, 2012
Before FLAUM and S YKES, Circuit Judges, and C ONLEY,
District Judge.
S YKES, Circuit Judge. Richie Pennington pleaded guilty
to selling a firearm to a felon, distributing ecstasy, and
possessing a firearm in furtherance of a drug-trafficking
The Honorable William M. Conley, Chief Judge of the United
States District Court for the Western District of Wisconsin,
sitting by designation.
2 No. 11-1257
crime. The government recommended a 68-month sen-
tence, the bottom of the applicable sentencing-guidelines
range. Pennington argued that 64 months was enough.
The judge rejected Pennington’s argument because the
four-month difference between the sentencing recom-
mendations was so little. He added that although the
sentencing guidelines are not binding, “judges are
told that [they] are to be followed.” The judge imposed
the 68-month sentence suggested by the government.
Pennington appeals, challenging the procedure the
judge used to reach that decision.
We vacate the sentence and remand for resentencing.
The judge appears to have rejected Pennington’s request
for a modest below-guidelines sentence simply because
it was modest and below the guidelines. There may
have been other reasons why he did so, but as it stands,
we cannot be sure the judge gave adequate considera-
tion to Pennington’s argument.
I. Background
Richie Pennington managed Traveling Treasures, a
retail store in Springfield, Illinois. In August 2009 law-
enforcement agents learned that Pennington illegally
sold an assault rifle from the store and also had allowed
a child to handle a gun in the store. A confidential infor-
mant later told the agents that Pennington regularly
carried guns in the store. The agents arranged for the
informant, a convicted felon, to make a controlled
purchase of a firearm from Pennington. Under the super-
vision of the agents, the informant bought a .32-caliber
No. 11-1257 3
revolver from Pennington, who knew the informant was
a felon.
The next month, a different informant bought mari-
juana from Pennington at the store. During the purchase,
Pennington was armed with a handgun in a shoulder
holster and was carrying four other firearms on his
person. A few weeks later, the same informant bought
ecstasy from Pennington at the store. Again Pennington
was armed with a large gun in a holster. The agents then
interviewed Pennington at his home. He admitted regu-
larly carrying firearms at his store, and he showed four
of them to the agents. Pennington also showed the
agents 17 other firearms that he kept at his house. Each
gun was unloaded and properly secured.
Pennington was arrested and indicted for (1) selling
a firearm to a felon in violation of 18 U.S.C. § 922(d)(1)
(Count 1); (2) distributing ecstasy in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) (Count 2); and (3) possessing
a firearm in furtherance of a drug-trafficking offense
in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). He
pleaded guilty without the benefit of a plea agreement
at his first court appearance.
The presentence report (“PSR”) assigned a guidelines
range of 8 to 14 months on Counts 1 and 2. Count 3,
however, carried a statutory minimum sentence of
60 months consecutive to any other sentence. Accord-
ingly, Pennington’s advisory guidelines range was 68
to 74 months. Neither party objected to the PSR’s findings.
At sentencing the court first heard argument from
the attorneys regarding their recommendations and the
4 No. 11-1257
sentencing factors in 18 U.S.C. § 3553(a). The prosecutor
acknowledged that Pennington had an insubstantial
criminal record compared to most defendants convicted
of similar crimes and also noted that he had accepted
responsibility very early in the case. He recommended
a sentence of 68 months, the bottom of the guidelines
range.
Pennington’s attorney argued for a 60-month sentence
on Count 3, a three-month sentence on Count 1, and
a concurrent four-month sentence on Count 2, for
a total sentence of 64 months. He explained that
this below-guidelines recommendation was justified by
Pennington’s extraordinary acceptance of responsibility,
minimal criminal history, serious mental-health issues
(including depression, posttraumatic stress disorder, and
bipolar disorder), and history of drug abuse. Counsel
also noted the atypical nature of the crimes; for example,
Pennington did not carry the firearms to intimidate
but simply to show off. He also asked the judge to let
Pennington surrender voluntarily so he could prepare
his medications before entering custody and so he
would be given a lower prison-security designation.
The prosecutor opposed this request.
The judge began his sentencing remarks by addressing
the issue of voluntary surrender. In doing so the judge
also discussed Pennington’s arguments under § 3553(a),
describing Pennington as “a very disturbed young
man” with severe mental-health issues. The judge then
calculated the applicable guidelines range and heard a
statement from Pennington, commending his pledge to
No. 11-1257 5
use his prison time constructively. After discussing
several additional § 3553(a) factors, including Penning-
ton’s relatively sparse criminal background and long
history of drug use, the judge granted Pennington’s
request to self-report.
The judge then turned to the length of Pennington’s
sentence. In rejecting Pennington’s request for a sentence
of 64 months (recall that the government recommended
68 months), the judge stated:
However, I must also say . . . that I’m not going to
shave any four months off of this. That’s silly, abso-
lutely silly. Once Mr. Pennington steels himself to
the fact that the realities of life here for him are
that he has time to serve, and whether it’s four
months off or not, I’m not going to get into that di-
chotomy. Because the amount of time that the sent-
encing guidelines give us is 8 on the bottom. And
when we’re talking about 60 additional months,
five years, these four fall into de minimis.
And besides, we judges are told that the sen-
tencing guidelines are to be followed. They’re not
binding, but they are indicators to us in what line
we are to find.
With that, the judge imposed a total sentence of
68 months.
II. Discussion
Pennington challenges the procedural soundness of his
sentence. We review a district court’s sentencing proce-
6 No. 11-1257
dures de novo. United States v. Abebe, 651 F.3d 653, 656
(7th Cir. 2011). A sentencing court must: (1) correctly
calculate the applicable guidelines range; (2) give mean-
ingful consideration to the § 3553(a) factors and the
principal, nonroutine sentencing arguments raised by
the defense; and (3) state the factors on which the sen-
tence is based. See United States v. Campos, 541 F.3d 735,
749-50 (7th Cir. 2008).
Here, the judge plainly fulfilled the first obliga-
tion and most of the second. He properly calculated
the guidelines range and considered the § 3553(a)
factors, including those raised by the defense. It is im-
material that the judge discussed the § 3553(a) factors
when addressing the voluntary-surrender issue; he
was not required to repeat his prior discussion when he
turned his attention to the length of the sentence. See
United States v. Anderson, 604 F.3d 997, 1003 (7th Cir.
2010) (rejecting a similar argument because “[w]e have
never required such repetition from the district court”).
The judge meaningfully considered the § 3553(a) factors,
and that is sufficient. See Campos, 541 F.3d at 749-50.
The record is less clear about whether the judge
properly handled Pennington’s request for a below-
guidelines sentence and adequately stated the consider-
ations that influenced the ultimate choice of sentence.
“[D]istrict courts need not recite any magic words at
sentencing to assure us that the correct standard is being
used.” United States v. Tyra, 454 F.3d 686, 687 (7th Cir.
2006). The judge need only make a record that shows
“a reasoned basis for exercising his own legal decision-
No. 11-1257 7
making authority.” Rita v. United States, 551 U.S. 338,
356 (2007). The sentencing court “must adequately
explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007).
Here, if the judge had made clear that he chose a 68-
month sentence based on his prior evaluation of the
§ 3553(a) factors, that would likely have been enough.
See United States v. Johnson, 635 F.3d 983, 988 (7th Cir.
2011) (“[W]e can resolve doubts in favor of the court
when its application of the § 3553(a) factors assures us
that the sentence was imposed in conformity with the
parsimony clause.”). But that’s not what happened. The
judge gave three reasons for the 68-month sentence:
(1) Pennington’s proposed four-month reduction from
the bottom of the guidelines range was “de minimis”;
(2) Pennington had time to serve, so the judge would not
“get into th[e] dichotomy” between 64 and 68 months;
and (3) the guidelines, while not binding, “are to be
followed” and “are indicators to [judges] in what line
[they] are to find.”
The first explanation about the negligible difference
between the parties’ sentencing recommendations is
troublesome for a couple of reasons. To begin, the so-called
parsimony provision of § 3553(a) requires that judges
“impose a sentence sufficient, but not greater than neces-
sary” to serve the purposes of sentencing.1 The judge
1
In contrast, the reviewing court’s obligation is to determine
whether a sentence falls within a reasonable range, giving
(continued...)
8 No. 11-1257
need not expressly refer to that provision at sentencing,
Abebe, 651 F.3d at 656, but his explanation of the sen-
tence must be consistent with its meaning, see Johnson,
635 F.3d at 988 n.1 (collecting cases). By characterizing
the difference between the recommended sentences
as “de minimis,” the judge implicitly accepted that
64 months was sufficient to serve the purposes of sen-
tencing. If so, the parsimony principle would ordinarily
require the more lenient sentence.
Second, although we see the judge’s point as a numerical
matter, the context here is criminal sentencing, and
four months in prison cannot be summarily dismissed as
insignificant. See Glover v. United States, 531 U.S. 198,
203 (2001) (“Authority does not suggest that a minimal
amount of additional time in prison cannot constitute
prejudice. Quite to the contrary, our jurisprudence sug-
gests that any amount of actual jail time has Sixth Amend-
ment significance.”). A modest below-guidelines recom-
mendation should not be rejected merely because it
is modest.
The judge’s second explanation for rejecting the
defense attorney’s proposal was that Pennington had
time to serve, so there was no point in “get[ting] into
th[e] dichotomy” of whether the sentence should be
reduced by four months from the bottom of the guide-
lines range. This is a variation on the last point. The judge
1
(...continued)
the sentencing court’s decision substantial deference. United
States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008).
No. 11-1257 9
apparently thought that because Pennington’s proposed
reduction was so minor, it did not need to be addressed
in a meaningful way.
We were faced with a similar issue in United States v.
Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). There, the
defendant argued that “a sentence even at the bottom
of the guidelines range” would be too harsh, but the
judge simply “brushed [it] aside.” Id. We acknowledged
the constraints on the district court’s time but held that
the judge’s explanation was inadequate: “[W]henever
a district judge is required to make a discretionary
ruling that is subject to appellate review, we have to
satisfy ourselves, before we can conclude that the judge
did not abuse his discretion, that he exercised his discre-
tion.” Id. at 679. Here, Pennington’s request for a 64-
month sentence was serious and based on a detailed
analysis of the § 3553(a) factors; it merited the application
of the court’s reasoned judgment. See id. (noting “the
temptation to a busy judge to impose the guidelines
sentence and be done with it”).
The judge’s third explanation for rejecting Pennington’s
request concerned the impact of the sentencing guide-
lines. The judge remarked that although the guidelines
are not binding, they “are to be followed.” This suggests
that the court proceeded from an improper presumption
that a within-guidelines sentence was reasonable. See
Nelson v. United States, 555 U.S. 350, 352 (2009) (per curiam)
(finding it “beside the point” that the sentencing judge
recognized the guidelines are not mandatory); see also
Rita, 551 U.S. at 351 (“[T]he sentencing court does not
10 No. 11-1257
enjoy the benefit of a legal presumption that the
Guidelines sentence should apply.”). Saying that the
guidelines, though nonbinding, “are to be followed”
and “are indicators to [judges] in what line [they] are to
find,” leaves us guessing about the court’s meaning.2
See Johnson, 635 F.3d at 989 (reaching a similar conclu-
sion where the judge acknowledged that he could disre-
gard the guidelines range but also said that adhering to
it would be “prudent” and that he imposed a guidelines
sentence “regrettably”).
Perhaps the judge intended only to paraphrase the
familiar principle that the guidelines are “the initial
benchmark” for an appropriate sentence. See Gall, 552
U.S. at 49. But where a “judge’s remarks are subject to
a variety of interpretations,” we are left “to wonder
whether he treated [the guidelines] as presumptively
reasonable.” United States v. Panice, 598 F.3d 426, 441-42
(7th Cir. 2010). The surrounding discussion adds to
the ambiguity. After finding essentially no difference
between a 64-month and a 68-month sentence, the only
reason the judge gave for choosing the latter was his
statement about the guidelines. The quick imposition
of sentence without any further explanation suggests
that the judge may have impermissibly placed a “thumb
on the scale favoring a guideline sentence.” United States
2
A correctly calculated, within-guidelines sentence is entitled
to a rebuttable appellate presumption of reasonableness. United
States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011); see also
Rita v. United States, 551 U.S. 338, 351 (2007).
No. 11-1257 11
v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007). In
similar circumstances we have remanded for resen-
tencing.3 See, e.g., Johnson, 635 F.3d at 989-90; Panice, 598
F.3d at 441-42.
Accordingly, we V ACATE Pennington’s sentence and
R EMAND for resentencing. Circuit Rule 36 shall apply on
remand. See, e.g., United States v. Figueroa, 622 F.3d 739,
745 (7th Cir. 2010) (Evans, J., concurring).
3
Pennington asks us to vacate only Counts 1 and 2 because
neither party advocated for anything other than the mandatory-
minimum sentence on Count 3. A district judge’s sentencing
decision ordinarily concerns the entire “sentencing package.” See
United States v. Smith, 103 F.3d 531, 533 (7th Cir. 1996) (“[I]n
imposing sentence, a district judge quite properly looks to
the bottom line, the total number of years (or under the guide-
lines, months) which effectuates a sentencing plan, or what
we have referred to as a ‘sentencing package.’ ”). We
decline to restrict the court’s review on remand to Counts 1
and 2 alone.
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