United States v. Barlow, Ronnie

Seventh Circuit

United States v. Barlow, Ronnie

270 F. App'x 441

CourtCourt of Appeals for the Seventh Circuit

DecidedMarch 20, 2008

Docket07-2577

StatusUnpublished

This text of 270 F. App'x 441 (United States v. Barlow, Ronnie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Barlow, Ronnie, 270 F. App'x 441 (7th Cir. 2008).

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Opinion

Order

This court affirmed Ronnie Barlow’s conviction almost four years ago. Since then his sentence has remained in dispute. The Supreme Court remanded for reconsideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We asked the district judge whether Booker would affect Barlow’s sentence. See United States v. Pala-dino, 401 F.3d 471, 481-85 (7th Cir.2005). The judge’s affirmative answer led to a remand for resentencing. The new sentence, 240 months, is 84 months lower than the original sentence, and well below the bottom of the range calculated under the Sentencing Guidelines. It is presumptively reasonable.

Nonetheless, Barlow maintains on this latest appeal, the sentence remains unreasonably high. He complains, for example, that the judge determined the quantity of cocaine for which he is culpable, though the jury’s verdict just set a minimum of five kilograms. There is no problem in judicial decisions on a preponderance of the evidence, as the Court explained in Rita v. United States, — U.S. -, 127 S. Ct. 2456, 168 L.Ed.2d 203 (2007), and the remedial portion of Booker. Barlow’s con *442 tention that Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), changes this rule is one that we have considered and rejected before. See United States v. Roti, 484 F.3d 934, 937 (7th Cir.2007); United States v. Savage, 505 F.3d 754, 764 (7th Cir.2007). Barlow’s further contention that a sentencing judge must address on the record all non-frivolous arguments made in support of a lower sentence is incompatible with Rita.

We note that Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), does not affect Barlow’s case. His offense level depends on the powder cocaine that he distributed and not the smaller quantity of crack included in his relevant conduct.

Barlow’s sentence is reasonable and is affirmed.

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Order

This court affirmed Ronnie Barlow’s conviction almost four years ago. Since then his sentence has remained in dispute. The Supreme Court remanded for reconsideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We asked the district judge whether Booker would affect Barlow’s sentence. See United States v. Pala-dino, 401 F.3d 471, 481-85 (7th Cir.2005). The judge’s affirmative answer led to a remand for resentencing. The new sentence, 240 months, is 84 months lower than the original sentence, and well below the bottom of the range calculated under the Sentencing Guidelines. It is presumptively reasonable.

Nonetheless, Barlow maintains on this latest appeal, the sentence remains unreasonably high. He complains, for example, that the judge determined the quantity of cocaine for which he is culpable, though the jury’s verdict just set a minimum of five kilograms. There is no problem in judicial decisions on a preponderance of the evidence, as the Court explained in Rita v. United States, — U.S. -, 127 S. Ct. 2456, 168 L.Ed.2d 203 (2007), and the remedial portion of Booker. Barlow’s con *442 tention that Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), changes this rule is one that we have considered and rejected before. See United States v. Roti, 484 F.3d 934, 937 (7th Cir.2007); United States v. Savage, 505 F.3d 754, 764 (7th Cir.2007). Barlow’s further contention that a sentencing judge must address on the record all non-frivolous arguments made in support of a lower sentence is incompatible with Rita.

We note that Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), does not affect Barlow’s case. His offense level depends on the powder cocaine that he distributed and not the smaller quantity of crack included in his relevant conduct.

Barlow’s sentence is reasonable and is affirmed.

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