United States v. Dotson, Johnathan ( 2007 )

NONPRECEDENTIAL DISPOSITION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
January 3, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-4352
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:03CR00087-001
JONATHAN DOTSON,
Defendant-Appellant. John Daniel Tinder, Judge.
ORDER
Jonathan Dotson was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g) and sentenced to 120 months’ imprisonment, the
maximum sentence under the statute. See 18 U.S.C. § 924(a)(2). On appeal, he
challenged the district court’s denial of his motion to suppress the gun that arresting
officers found in his possession; however, we found no Fourth Amendment violation
and affirmed his conviction in an unpublished order. See United States v. Dotson, 2004
WL 1435203 (7th Cir. Jun. 25, 2004). In response to Dotson’s petition for a writ of
certiorari, the Supreme Court vacated our decision and remanded the case to us for
further consideration in light of its decision in United States v. Booker, 543 U.S. 220
(2005). After again affirming Dotson’s conviction, we ordered a limited remand
No. 03-4352 Page 2
pursuant to the procedures set forth in United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005), to allow the district court an opportunity to consider whether it would
have imposed the same sentence with the knowledge that the guidelines are not
mandatory. The district court responded that it would have imposed the same sentence
had the guidelines been advisory at the time of Dotson’s sentencing.
We invited both parties to file memoranda regarding the appropriate disposition
of this appeal. The government chose not to file anything. Dotson filed a response
challenging certain factual findings made by the district judge in calculating the proper
guideline range; he did not address the question whether the overall sentence was
reasonable. Specifically, Dotson argued that the district court erred by enhancing his
base offense level based on the findings that one of his prior convictions was a crime
of violence, and that the gun he was convicted of possessing was stolen. The time for
challenging the guideline calculations, however, is long past. The scope of the Paladino
remand is limited to inquiring whether the district judge would be inclined to stray
from the guideline range, given his newfound flexibility to do so. Our subsequent
review of that decision for reasonableness does not open the door to factual challenges
that should have been raised earlier. Accordingly, we decline to analyze the objections
Dotson is now attempting to raise; we consider solely whether the ultimate sentence
was reasonable.
The district court considered the factors listed in 18 U.S.C. § 3553(a) and
sentenced Dotson at the lowest end of the applicable guidelines range of 120 to 150
months. (That sentence was heavily influenced by the fact that the statutory maximum
for Dotson’s offense is 120 months). We have held that a sentence within a properly
calculated guidelines range is presumptively reasonable. See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). We are aware that the Supreme Court has
granted certiorari in Rita v. United States, 127 S. Ct. 551 (2006) (No. 06-5754), in order
to decide whether a presumption of reasonableness is consistent with its Booker
decision. In Dotson’s case, however, the district court examined the full record and
reasonably decided not to choose a sentence below the guidelines range. We conclude
that Dotson’s ultimate sentence was reasonable, even without the benefit of any
presumption. We AFFIRM the judgment of the district court.