United States v. Barlow, Ronnie ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2008*
Decided March 20, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07-2577
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Northern District of Illinois,
Eastern Division.
v.
No. 99 CR 544
RONNIE BARLOW, Wayne R. Andersen, Judge.
Defendant-Appellant.
Order
This court affirmed Ronnie Barlow’s conviction almost four years ago. Since then
his sentence has remained in dispute. The Supreme Court remanded for reconsideration
in light of United States v. Booker, 543 U.S. 220 (2005). We asked the district judge
whether Booker would affect Barlow’s sentence. See United States v. Paladino, 401 F.3d
471, 481-85 (7th Cir. 2005). The judge’s affirmative answer led to a remand for
resentencing. The new sentence, 240 months, is 84 months lower than the original
* This successive appeal has been submitted to the original panel under Operating Procedure
6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-2577 Page 2
sentence, and well below the bottom of the range calculated under the Sentencing
Guidelines. It is presumptively reasonable.
Nonetheless, Barlow maintains on this latest appeal, the sentence remains
unreasonably high. He complains, for example, that the judge determined the quantity
of cocaine for which he is culpable, though the jury’s verdict just set a minimum of five
kilograms. There is no problem in judicial decisions on a preponderance of the
evidence, as the Court explained in Rita v. United States, 127 S. Ct. 2456 (2007), and the
remedial portion of Booker. Barlow’s contention that Cunningham v. California, 127 S. Ct.
856 (2007), changes this rule is one that we have considered and rejected before. See
United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); United States v. Savage, 505 F.3d
754, 764 (7th Cir. 2007). Barlow’s further contention that a sentencing judge must
address on the record all non-frivolous arguments made in support of a lower sentence
is incompatible with Rita.
We note that Kimbrough v. United States, 128 S. Ct. 558 (2007), does not affect
Barlow’s case. His offense level depends on the powder cocaine that he distributed and
not the smaller quantity of crack included in his relevant conduct.
Barlow’s sentence is reasonable and is affirmed.