United States v. Yarbrough, Rico

                      NONPRECEDENTIAL DISPOSITION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
Argued August 8, 2007
Decided October 1, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-3838
UNITED STATES OF AMERICA,                      Appeal from the United States District
Plaintiff-Appellee,                        Court for the Western District of
Wisconsin
v.
No. 06-CR-0097-C-01
RICO YARBROUGH,
Defendant-Appellant.                      Barbara B. Crabb,
Chief Judge.
ORDER
Rico Yarbrough pleaded guilty to distributing crack cocaine. See 

21 U.S.C. § 841

(a)(1). The district court sentenced him to a prison term of 235 months, which
was at the very bottom of the guidelines range. On appeal, Yarbrough’s principal
argument is that a sentence within the guidelines range should not be accorded a
presumption of reasonableness. Alternatively, he argues that the sentence imposed
in this case was not reasonable. In light of Rita v. United States, 

127 S.Ct. 2456

(2007), and because we are convinced that the district court adequately considered
the § 3553(a) factors and imposed a reasonable sentence, we affirm.
After he was arrested in an undercover sting operation, Yarbrough pleaded
guilty to distributing five grams or more of crack cocaine, see 

21 U.S.C. § 841

(a)(1).
No. 06-3838                                                                     Page 2
The probation officer calculated a base offense level of 36 and then deducted three
levels for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total
offense level of 33. The probation officer also calculated a criminal history category
of VI, yielding a guidelines imprisonment range of 235 to 293 months.
At sentencing, Yarbrough’s attorney argued that the court should “take into
account” that Yarbrough “did provide cooperation” to the government, though he
acknowledged that “the government holds all the cards” concerning “whether
they’re going to make a 5K1 type motion or Rule 35 motion.” Counsel for the
government informed the court that the information Yarbrough provided
“unfortunately was not useful,” thus the government declined to exercise its
discretion to file a motion under U.S.S.G. § 5K1.1 to reduce his sentence.
The district court sentenced Yarbrough to 235 month’s imprisonment,
reasoning that a sentence at the bottom of the range was “sufficient to hold [him]
accountable” for his conduct and protect the community. The court observed that he
had shown a “complete lack of concern for the rights or safety of anybody around
[him]” by committing traffic offenses, abusing the mother of his children, and
selling drugs. The court further noted that Yarbrough was “dangerous to the
community” and that his criminal history category “does not overstate the
likelihood that [he] will reoffend.”
On appeal, Yarbrough primarily argues that his within-guidelines sentence
should not be presumed reasonable because, he contends, the presumption imposes
an improper burden on sentencing courts to justify sentences outside the guidelines,
thus effectively maintaining the mandatory sentencing regime that was found to be
unconstitutional in United States v. Booker, 

543 U.S. 220

 (2005). But Yarbrough’s
challenge to the presumption of reasonableness is foreclosed by the Supreme
Court’s recent decision in Rita v. United States, 

127 S.Ct. 2456

, 2462-68 (2007). His
sentence fell within the properly calculated guidelines range; therefore we presume
the sentence to be reasonable. See United States v. Gama-Gonzalez, 

469 F.3d 1109

,
1110 (7th Cir. 2006); United States v. Mykytiuk, 

415 F.3d 606

, 607-08 (7th Cir.
2005).
Yarbrough next contends that his sentence is unreasonable. He seems to
contend that the court erred in denying him a three-level adjustment for acceptance
of responsibility under U.S.S.G. § 3E1.1. But this is factually incorrect. The record
is clear that Yarbrough received the three-level reduction under § 3E1.1.
Yarbrough also argues that the district court erred in declining to press the
government to request a sentence reduction for substantial assistance. But
Yarbrough has no viable argument that the court erred in not relying on U.S.S.G.
§ 5K1.1 to reduce his sentence. A sentencing court has no power to reduce a
No. 06-3838                                                                   Page 3
sentence under that guideline unless the government first makes a motion. See
United States v. Artley, 

489 F.3d 813

, 819 (7th Cir. 2007); United States v. Burrell,

963 F.2d 976

, 984-85 (7th Cir. 1992). The government’s decision not to file a
substantial assistance motion will be upheld unless it was based on an
unconstitutional motive or is not rationally related to any legitimate government
purpose. See Wade v. United States, 

504 U.S. 181

, 185-86 (1992); United States v.
Miller, 

458 F.3d 603

, 604-05 (7th Cir. 2006). Yarbrough has never asserted that the
prosecution harbored any impermissible motive for declining to seek a § 5K1.1
reduction. Nor was it irrational for the government to decline to seek the reduction,
given its determination that Yarbrough did not provide useful information.
AFFIRMED.