United States v. Lonnie Weston

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1048
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Lonnie Weston, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 18, 2008
Filed: March 4, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Lonnie Weston appeals the 360-month prison sentence the district court
imposed after a remand for resentencing in light of United States v. Booker, 543 U.S.
220 (2005). Counsel has filed a brief under Anders v. California, 386 U.S. 738(1967), and a motion to withdraw. We deny that motion. Counsel has also filed two
Federal Rule of Appellate Procedure 28(j) letters, suggesting in the second that the
district court plainly erred in light of Gall v. United States, 128 S. Ct. 586, 594-95
(2007), and Rita v. United States, 127 S. Ct. 2456, 2465 (2007).
Weston has filed a pro se supplemental brief, asserting that the district court
erred in not simply adopting the alternative 240-month prison sentence pronounced
at the original sentencing hearing. We reject this argument. The court on remand
properly undertook its obligation to consider the 18 U.S.C. § 3553(a) factors. See
Booker, 543 U.S. at 258-62; United States v. Weston, 443 F.3d 661, 666-69 (8th Cir.)
(stating it was not possible to tell from record whether, in fashioning alternative
sentence, district court had considered § 3553(a) factors), cert. denied, 127 S. Ct. 417(2006).
At resentencing in December 2006, Weston asked the court to vary from the
applicable advisory Guidelines range of 360 months to life in prison, and impose the
statutory minimum sentence of 240 months. The district court stated that this court
had said a within-Guidelines-range sentence is presumptively reasonable; that it felt
bound by this court’s precedent requiring “extraordinary circumstances” to vary from
the Guidelines; and that, although it preferred a 20-year sentence, it was unable to
conclude that 360 months was unreasonable. Reviewing for plain error, see United
States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (failure to object below
limits court to plain-error review), we conclude that the district court erred by
applying the presumption of reasonableness, that the error is now plain, and that the
record shows a reasonable probability Weston would have received a lower sentence
but for the error. See Gall, 128 S. Ct. at 594-95 (extraordinary circumstances are not
necessary to justify sentence outside Guidelines range); Rita, 127 S. Ct. at 2465(presumption of reasonableness accorded to sentences reflecting proper application
of Guidelines applies only on appellate review, not at sentencing); United States v.
Greene, No. 07-1479, 2008 WL 238600, at *1-3 (8th Cir. Jan. 30, 2008) (vacating
sentence and remanding because district court applied impermissible presumption of
reasonableness: district court expressed that, although it wished to depart downward
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from advisory range, under Eighth Circuit precedent it did not have much discretion
to do so).
Accordingly, we vacate Weston’s sentence and remand for resentencing.
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