NONPRECEDENTIAL DISPOSITION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 15, 2010
Decided May 7, 2010
Before
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐3522
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of
Plaintiff‐Appellee Illinois, Eastern Division.
v.
No. 01 CR 00001‐2
GREGORY DAVIS,
Defendant‐Appellant. Charles R. Norgle, Sr.,
Judge.
O R D E R
On May 11, 2009, we vacated Gregory Davis’s 210‐month sentence and remanded
the case to the district court for resentencing in light of Kimbrough v. United States,
552 U.S.
85 (2007). United States v. Davis, No. 03‐2915 (7th Cir. May 11, 2009). On remand, the
sentencing judge ruled that Davis’s guideline range would remain at 210‐262 months (the
range prescribed by the 2002 guidelines in effect at the time of his initial sentencing)
pursuant to
18 U.S.C. § 3742(g)(1), and imposed a 200‐month sentence. Davis appeals.
Davis first argues that the application of
18 U.S.C. § 3742(g)(1) to crack cocaine
offenders who were sentenced prior to the amendment of the guidelines violates the Eighth
Amendment’s ban on cruel and unusual punishment. This argument fails. A sentence
No. 09‐3522 Page 2
imposed for a non‐capital felony conviction that falls “within the legislatively prescribed
limits will not be considered disproportionate unless the sentencing court abused its
discretion.” United States v. Vasquez,
966 F.2d 254, 261 (7th Cir. 1992). Davis’s sentence fell
within legislatively prescribed limits — § 3742(g)(1) provides that in conducting a
resentencing hearing, district courts “must apply the guidelines as they existed at the time
of [the defendant’s] first sentencing.” United States v. Romero,
528 F.3d 980, 981 (7th Cir.
2008). Section 3742(g)(1)’s charge to apply the guidelines in effect on the date of the
previous sentencing support the district court’s sentence and militate against Davis’s Eighth
Amendment claim.
Davis challenges the reasonableness of his sentence on similar grounds, arguing that
it was improper for the district court to use the 2002 guideline range given that the
guidelines have been subsequently amended by the Sentencing Commission. This was also
Davis’s primary argument to the district court at his resentencing — Davis contended that
the Sentencing Commission expressed a policy judgment in 2007 that the crack/cocaine
powder disparity should be lessened, and that the district court should have taken that into
account in reaching a sentence.
We cannot tell from the district court’s explanation for the sentence whether the
court actually considered Davis’s argument. While Davis’s sentence was 10 months below
the 2002 advisory guidelines range and is thus presumed reasonable, United States v. Poetz,
582 F.3d 835, 837 (7th Cir. 2009), the district judge did not provide a sufficient explanation to
allow us to meaningfully review the sentence. Remand for resentencing is therefore
warranted. See United States v. Harris,
567 F.3d 846, 854‐55 (7th Cir. 2009) (insufficient
explanation for sentencing decision precluded affirmance); United States v. Miranda,
505 F.3d
785, 795‐96 (7th Cir. 2007) (same); United States v. Cunningham,
429 F.3d 673, 679‐80 (7th Cir.
2005) (same).
The district court imposed Davis’s sentence without providing a meaningful
explanation as to why that sentence was being given. The district court stated:
I have . . . determined the guideline range to be 210 to 262 months.
The original sentence imposed by the Court was 210 months. The
matter is before the Court for reconsideration. I have heard what the
defendant has had to say and what the witnesses have said and the
arguments of counsel. The guidelines are not mandatory. They do
serve as guides. So in looking at the entire matter, all of the
information before the court today, the sentence imposed by the Court
is 200 months — not 210 months — but 200 months which the Court
No. 09‐3522 Page 3
finds to be a fair and appropriate sentence given the totality of the
information before the Court.
This explanation gives no indication how, if at all, the court exercised its discretion in
considering Davis’s argument regarding the 2007 crack/powder disparity guideline
amendments. While a district court need not discuss every single § 3553(a) factor or
address every single argument from a defendant, it does have to provide reasons for its
sentencing decision and address the defendant’s principal arguments that merit discussion.
Cunningham,
429 F.3d at 679. Davis’s argument was not one that was “so clearly without
merit that it could be passed over without comment.” Harris,
567 F.3d at 854; see United
States v. Demaree,
459 F.3d 791, 795 (7th Cir. 2006) (“[W]hen the Sentencing Commission
changes a guideline, it does so for a reason; and since it is a body expert in criminal
punishments, its reason is entitled to the serious consideration of the sentencing judge.”).
Instead of directly addressing Davis’s argument, the district court noted that the
guidelines were advisory, recited the generic language of the § 3553(a) factors, and then
announced a 200‐month sentence based on “the totality of the information before the
Court.” As we stated in Cunningham, “a rote statement that the judge considered all
relevant factors will not always suffice.”
429 F.3d at 679. And we have vacated and
remanded other cases with similarly conclusory sentencing explanations, finding that they
precluded meaningful appellate review. See, e.g., United States v. Villegas‐Miranda,
579 F.3d
798, 802 (7th Cir. 2009) (“Although the district court listened at length to [defendant’s
argument], we cannot take on faith that it adequately considered the argument where it
passed it over in silence.”) (internal quotes omitted); Miranda,
505 F.3d at 796 (“We cannot
tell from the district court’s comments whether the court made that individualized analysis
of Miranda’s facutal and legally supported sentencing arguments.”).
Also complicating matters is the fact the court stated that it considered United States
v. Welton,
583 F.3d 494 (7th Cir. 2009), which has been overruled by our holding in United
States v. Corner.
598 F.3d 411, 416 (7th Cir. 2010) (en banc). Because the district court did
not explain how the cases it cited were influencing its decision, we cannot know from this
record whether Welton played a role in its reasoning. The possibility that Welton may have
influenced the court also militates in favor of remand.
We express no opinion as to the length of the sentence given to Davis; our concern is
solely with the fact that the explanation given for the sentence precludes meaningful
appellate review. It may well be the case that the district court disagreed with the
crack/powder disparity reflected in the 2002 guidelines, but agreed with the government’s
argument that other aggravating factors, such as Davis’s criminal history, warranted a 200‐
No. 09‐3522 Page 4
month sentence. But there is no way to tell that from the record. Here, like in Cunningham,
“[t]he inadequate explanation for the sentence precludes our affirmance.”
429 F.3d at 680.
Davis’s sentence is VACATED and the case is REMANDED for resentencing.
