United States v. White, Mark A.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 22, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-2875
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. IP-98-38-CR-M/F-03
MARK A. WHITE,
Defendant-Appellant. Larry J. McKinney,
Chief Judge.
ORDER
After concluding that the district court judge correctly imposed an obstruction-of-
justice enhancement pursuant to U.S.S.G. § 3C1.1, and that the disparity between
White’s 480 month sentence and his co-defendant’s 360 month sentence did not violate
due process principles, we ordered a limited remand so that the district court could
determine whether it would issue the same sentence in light of United States v. Booker,
– U.S. – , 125 S. Ct. 738 (2005), which relegated the United States Sentencing Guidelines
(“Guidelines”) to advisory status. See United States v. Paladino, 401 F.3d 471 (7th Cir.
2005). In his reply, the district court judge indicated that he would have imposed the
same sentence today knowing that the Guidelines are not mandatory. We invited parties
No. 03-2875 Page 2
to file, within 7 days, any arguments concerning the appropriate disposition of this
appeal in light of the district court’s sentence. Defendant White accepted our invitation;
the government did not. We now affirm White’s sentence.
White was convicted of money laundering and conspiracy to distribute large
amounts of cocaine. During White’s initial sentencing hearing, the district court
concluded that White had assisted in covering up the murder of an undercover law
enforcement official, and consequently applied the murder cross-reference enhancement,
sentencing White to life imprisonment. On appeal, we held that the factual findings did
not support this enhancement, and we remanded for resentencing. See United States
v. Thompson, 286 F.3d 950, 955 (7th Cir. 2002). At resentencing, the district court
sentenced White to 480 months’ imprisonment. We affirmed this sentence, but
remanded for the limited purpose of inquiring whether the district court would impose
the same sentence in light of Booker. See United States v. White, 406 F.3d 827, 836 (7th
Cir. 2005).
We now review White’s sentence for reasonableness. Booker, 125 S. Ct. at 765;
Paladino, 401 F.3d 471. Because White’s sentence falls within the Guidelines’
recommended sentencing range of 360 months to life, based on a final offense level of 42
and a category II criminal history, it is entitled to a rebuttable presumption of
reasonableness. See United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005). White
can rebut this presumption by demonstrating that his sentence is unreasonable when
measured against the factors set forth in 18 U.S.C. §3553(a). Id. at 607.
Here, White provides two arguments as to why his sentence is unreasonable.
Neither has merit. He first argues that the 120-month sentence disparity between him
and his co-defendant, Dennis Jones, was “unwarranted” and is contrary to 18 U.S.C.
§3553(a)(6), which prescribes “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.”
White argues that the district court unreasonably imposed an obstruction of justice
enhancement on only him, ignoring Jones’s equal culpability. This court previously
rejected this argument when White raised it, framed in due process terms, in his prior
appeal. See White, 406 F.3d at 837. We upheld the district court’s imposition of an
obstruction-of-justice enhancement to White’s sentence, even though the district court
found that Jones had engaged in “substantially identical conduct.” Id. We held that we
would “not disturb the appealing defendant’s sentence even when a co-conspirator’s
sentence is lenient,” but rather would only “disturb a sentence based on an unjustifiable
disparity between the length of the appellant defendant’s sentence and all other similar
sentences imposed nationwide.” Id., quoting United States v. Simpson, 337 F.3d 905,
909 (7th Cir. 2003). We noted then that White had not presented any evidence that his
sentence was at odds with similar sentences imposed nationwide. Id. He does not
present such evidence now. Nor does White provide any analysis – much less controlling
No. 03-2875 Page 3
authority – to indicate why our present review for reasonableness should contradict our
prior holding under a due process framework.
White also raises an undeveloped argument that his relative youth at the time of
the offense (he began the drug conspiracy at age 18 and continued through age 23)
renders his sentence unreasonable. White does not raise any other “characteristics”
under 18 U.S.C. § 3553(a)(1) that would support a finding that the sentence imposed was
unreasonable. White’s age alone is insufficient to rebut the presumption of
reasonableness here, particularly in light of the extremely serious nature of White’s
crimes, which the Guidelines deem sufficiently serious to recommend up to life
imprisonment. Although White’s 40-year sentence may well be tantamount to a life
imprisonment, the district court nonetheless imposed a less firm sentence than life
imprisonment. Accordingly, it cannot be said to be unreasonable.
White raises a final procedural argument. He argues that an additional remand
is required because the district court’s one-sentence affirmance of its previous sentence
lacked any explanation of White’s sentence in light of the § 3553(a) factors. This is true:
although the district court invited written submisssions from the parties and indicated
in its order that it had reviewed these submissions, it did not provide any analysis. The
provision of reasons, however, is not a strict requirement when the sentence imposed is
within the sentencing range recommended by the Guidelines. United States v. Dean,
414 F.3d 725, 730 (7th Cir. 2005). Under such circumstances, “we will infer that the
judge has considered all the factors for a fair sentence set forth in the Guidelines.” Id.,quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The better practice,
of course, is for the district court to provide some form of analysis, which provides us
with a clearer basis for review. But, particularly in light of the repeated resentencings
in this case, to require a remand for the district court to provide explicit reasons here
would be a fruitless exercise.
Accordingly, we AFFIRM the judgment of the district court.