United States v. Yarbor, Charles , 134 F. App'x 945 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2005
Decided May 13, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 03-2232
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 02 CR 163
CHARLES YARBOR,
Defendant-Appellant. Charles P. Kocoras, Chief Judge.
ORDER
This case has been returned to us by the Supreme Court “for further consideration in light
of United States v. Booker, 125 S. Ct. 738 (2005).” Although most cases returned to us with a
similar directive end up receiving a limited remand pursuant to our decision in United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005), this case cannot be similarly treated.
Charles Yarbor, along with three codefendants, was charged with a bevy of firearms
offenses. He was convicted after a jury trial and sentenced to 60 months imprisonment on
April 23, 2003. On April 14, 2004, we affirmed Yarbor’s conviction and sentence. United States
v. Wren, 363 F.3d 654 (7th Cir. 2004).
In United States v. Lee, 399 F.3d 864 (7th Cir. 2005), we said, where the record clearly
reflects that the “district court’s mistaken belief about the extent of its discretion to reduce the
No. 03-2232 2
penalty did not work to a defendant’s disadvantage,” the sentence should be affirmed. That’s the
situation here.
The district court sentenced Yarbor under the then-mandatory sentencing guidelines.
Specifically, under the guidelines, Yarbor’s base offense level was 26 because the offense involved
a semiautomatic assault weapon and he had two prior convictions for controlled substance
offenses. The court also increased his sentence by 6 levels because the offense involved between
25 and 99 firearms, 2 levels because the offense level involved a firearm with an obliterated serial
number, and 4 levels because Yarbor transferred a firearm with knowledge that it would be used
in connection with another felony offense. Thus, the district court determined that the applicable
sentencing guidelines range was 168 to 210 months, based on a total adjusted offense level of 33,
and a criminal history category of III. The district court, however, only imposed a sentence of 60
months, the statutory maximum, which was well below the applicable sentencing guidelines range.
And when sentencing Yarbor, the judge stated that, if there was no statutory cap on his sentence,
Yarbor would be going to jail for a “long, long time.” The district judge also stated that, but for
the 5-year statutory cap, he would have sentenced Yarbor to up to 15 years imprisonment.
In light of these facts, it is clear that the application of advisory guidelines would not have
altered the outcome of this sentencing proceeding, and therefore it is unnecessary to remand the
case to obtain the district court judge’s views on the subject. Mr. Yarbor’s sentence is affirmed.