United States v. Price, Terraun

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 25, 2005
Decided November 22, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 03-3780
UNITED STATES OF AMERICA, Appeal from the United States
District Court for the Northern
Plaintiff-Appellee, District of Indiana, Hammond
Division.
v. No. 01 CR 98
TERRAUN PRICE, also known as James T. Moody, Judge.
BOO ROCK,
Defendant-Appellant.
ORDER
Terraun Price was convicted of conspiracy to distribute 50 grams or more of
cocaine base and of use of a telephone to facilitate a drug conspiracy. After
determining the amount of cocaine attributable to Mr. Price, and the resultant
offense level, the district court sentenced Mr. Price to life imprisonment in
No. 03-3780 Page 2
accordance with the then-mandatory United States Sentencing Guidelines. Mr.
Price appealed his conviction and sentence.
This court affirmed Mr. Price’s conviction, but noted that the district court
“had based Mr. Price’s sentence on supplemental facts neither admitted by Mr.
Price nor proven to the jury beyond a reasonable doubt,” United States v. Price, 418
F.3d 771, 786 (7th Cir. 2005); the sentence, therefore, violated Mr. Price’s Sixth
Amendment right to a jury trial. See United States v. Booker, 125 S. Ct. 738(2005). In order to determine whether Mr. Price’s sentence constituted plain error,
we remanded to the district court pursuant to Paladino v. United States, 401 F.3d
471 (7th Cir. 2005), for a determination of whether the district court would have
imposed a different sentence on Mr. Price had the court not been bound to sentence
Mr. Price within the applicable guideline range.
Pursuant to our remand order, the district court requested statements from
the parties concerning the propriety of the sentence. The Government argued that,
given the serious nature of the crime involved, Mr. Price’s sentence was
appropriate. Mr. Price countered that, in calculating his new sentence, the district
court should be limited to only those facts found by the jury. The district court
believed that the approach suggested by Mr. Price was inconsistent with the
approach outlined by the Supreme Court in Booker: “[T]he procedure allowed by
the Booker/Fanfan remedy . . . is for the court to engage in factfinding to calculate a
Guidelines-recommended sentence, but then to consider that recommendation along
with the other . . . Factors as required by 18 U.S.C. § 3553(a) in order to impose a
reasonable and just sentence.” Memorandum and Statement on Limited Remand as
to Resentencing (October 6, 2005) at 2. The district court then stated that, in light
of the information it had concerning both Mr. Price and the crime he committed,
and after consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a), it
would have imposed the same sentence on Mr. Price had it known the Guidelines
were merely advisory.
Booker instructs us to review the district court’s sentencing determination for
reasonableness. Booker, 125 S. Ct. at 767. However, Booker also anticipates that,
in arriving at a sentence, district courts will continue to look to the Guidelines in
reaching appropriate sentences. See id. We have recognized that “[t]he Guidelines
remain an essential tool in creating a fair and uniform sentencing regime across the
country.” United States v. Mykytuik, 415 F.3d 606, 608 (7th Cir. 2005). Thus, “any
sentence that is properly calculated under the Guidelines is entitled to a rebuttable
presumption of reasonableness.” Id. Under this deferential standard, a defendant
“can rebut this presumption only by demonstrating that his or her sentence is
unreasonable when measured against the factors set forth in [28 U.S.C. ] §
3553(a).” Id. Theoretically, a sentence within the applicable guideline range can be
unreasonable, but we have recognized that “it will be a rare” occurrence. Id.
No. 03-3780 Page 3
In the present case, Mr. Price does not claim that the district court’s
calculation of his sentence under the Guidelines is incorrect. Furthermore, Mr.
Price has not argued that, considering the factors set forth in § 3553(a), his
sentence is unreasonable. Indeed, it would be difficult to do so. Mr. Price was a
leader of a conspiracy to distribute cocaine in Gary, Indiana; his involvement lasted
several years and, during that time, he played several roles: he prepared the drugs
for sale, he distributed the drugs to the street dealers, and he watched the
neighborhood for law enforcement presence. Because Mr. Price has not rebutted
the presumption of reasonableness, we affirm the district court’s imposition of a life
sentence.
AFFIRMED