United States v. Murry, Darnell ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 20, 2006
Decided December 7, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-2497
UNITED STATES OF AMERICA, ] Appeal from the United
] States District Court for
Plaintiff-Appellee, ] the Northern District of
] Illinois, Eastern Division
]
v. ] No. 02 CR 1056-1
]
]
DARNELL MURRY, ]
] Suzanne B. Conlon,
Defendant-Appellant. ] Judge.
ORDER
This case is on appeal from a limited remand from our court pursuant to
United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). The district court
has now determined that it would impose the same sentence if we were to vacate
the judgment and remand for re-sentencing even in light of the advisory nature of
the Guidelines. We must therefore determine whether the sentence is reasonable.
If it is, then any Sixth Amendment violation in the sentencing process did not affect
No. 05-2497 2
Murry’s substantial rights and thus did not constitute plain error.
Murry’s sentence is within the Guideline range, and therefore we must
presume that the sentence is reasonable. United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). A defendant may rebut that presumption by demonstrating
that his sentence is unreasonable in light of the factors identified in 18 U.S.C. §
3553(a). The parties have had the opportunity to file arguments concerning the
appropriate disposition of the appeal in light of the district court’s decision. Murry
asserts that the district court on remand failed to consider his argument for a
reduced sentence pursuant to the § 3553(a) factors, which was that the district
court had found the Government’s evidence of loss unreliable in the restitution
context and therefore should not credit it in determining the loss under the
Guidelines.
This argument has been rejected numerous times, in both the district court
and in this court. In the prior appeal to this court, we agreed with the district court
that the loss calculation under the Guidelines was not implicated by the district
court’s concerns with the government’s calculation of restitution, and that the
remand for recalculation of restitution did not call into question the loss calculation.
Both this court and the district court made it clear that the loss calculation is
distinct from, and broader than, that of restitution, and therefore evidence not
relevant for restitution may nonetheless be relevant in determining loss under the
Guidelines. Murry attempts to resurrect that argument under the guise of the §
3553(a) factors, but that is not the proper place for a challenge to the Guidelines
loss calculations. He did not challenge that Guidelines range at the initial
sentencing, and it is the proper starting point for the court’s sentencing
determination. Murry has failed to identify any § 3553(a) factors that were not
properly considered by the district court on remand, and we have no basis upon
which to find that the sentence was unreasonable. Accordingly, we affirm the
sentence.