NELSON, aka ZIKEE v. UNITED STATES

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350 OCTOBER TERM, 2008
Per Curiam
NELSON, aka ZIKEE v. UNITED STATES
on petition for writ of certiorari to the united
states court of appeals for the fourth circuit
No. 08–5657. Decided January 26, 2009
In sentencing petitioner Nelson under the United States Sentencing
Guidelines, the District Court stated that the Guidelines were presump
tively reasonable. The Fourth Circuit affirmed, rejecting Nelson’s ar
gument that the District Court erred in relying on that presumption.
After this Court vacated the judgment and remanded in light of Rita v.
United States, 551 U. S. 338, the Fourth Circuit reaffirmed. It acknowl
edged that under Rita, while courts of appeals “may apply a presump
tion of reasonableness to a district court sentence that reflects a proper
application of the Sentencing Guidelines,” id., at 347, “the sentencing
court does not enjoy the benefit of legal presumption that the Guidelines
sentence should apply,” id., at 351. It nonetheless upheld the sentence,
finding that the District Court treated the Guidelines as advisory rather
than as mandatory.
Held: The Fourth Circuit erred in rejecting Nelson’s argument that the
District Court impermissibly applied a presumption of reasonableness
to his Guidelines range. This Court stated fairly explicitly in Rita that
a sentencing court may not presume that a sentence within the applica
ble Guidelines range is reasonable. Ibid. The fact that the District
Judge did not treat the Guidelines as mandatory is beside the point.
The Guidelines are not only not mandatory on sentencing courts; they
are also not to be presumed reasonable.
Certiorari granted; 276 Fed. Appx. 331, reversed and remanded.
Per Curiam.
Lawrence Nelson was convicted of one count of conspiracy
to distribute and to possess with intent to distribute more
than 50 grams of cocaine base. See 21 U. S. C. § 846. The
District Court calculated Nelson’s sentencing range under
the United States Sentencing Guidelines, and imposed a sen
tence of 360 months in prison (the bottom of the range).
During sentencing, the judge explained that under Fourth
Circuit precedent, “ ‘the Guidelines are considered presump

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351 Cite as: 555 U. S. 350 (2009)
Per Curiam
tively reasonable,’ ” so that “ ‘unless there’s a good reason in
the [statutory sentencing] factors . . . , the Guideline sentence
is the reasonable sentence.’ ” Pet. for Cert. 10.
The United States Court of Appeals for the Fourth Circuit
affirmed Nelson’s conviction and sentence. United States v.
Nelson, 237 Fed. Appx. 819 (2007) (per curiam). It noted
that within-Guidelines sentences are presumptively rea
sonable, and rejected Nelson’s argument that the District
Court’s reliance on that presumption was error. Id., at 821.
Nelson filed a petition for a writ of certiorari. We granted
the petition, vacated the judgment, and remanded the case
to the Fourth Circuit for further consideration in light of
Rita v. United States, 551 U. S. 338 (2007). Nelson v. United
States, 552 U. S. 1163 (2008).
On remand and without further briefing, the Fourth Cir
cuit again affirmed the sentence. 276 Fed. Appx. 331 (2008)
(per curiam). The court acknowledged that under Rita,
while courts of appeals “may apply a presumption of reason
ableness to a district court sentence that reflects a proper
application of the Sentencing Guidelines,” 551 U. S., at 347,
“the sentencing court does not enjoy the benefit of a legal
presumption that the Guidelines sentence should apply,” id.,
at 351. Instead, the sentencing court must first calculate
the Guidelines range, and then consider what sentence is ap
propriate for the individual defendant in light of the statu
tory sentencing factors, 18 U. S. C. § 3553(a), explaining any
variance from the former with reference to the latter.
Nonetheless, the Fourth Circuit upheld the sentence, finding
that the District Court did not treat the Guidelines as “man
datory” but rather understood that they were only advisory.
276 Fed. Appx., at 333.
Nelson has again filed a petition for a writ of certiorari,
reasserting, inter alia, essentially the same argument he
made before us the first time: that the District Court’s state
ments clearly indicate that it impermissibly applied a pre

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352 NELSON v. UNITED STATES
Breyer, J., concurring in judgment
sumption of reasonableness to his Guidelines range. The
United States admits that the Fourth Circuit erred in reject
ing that argument following our remand; we agree.
Our cases do not allow a sentencing court to presume that
a sentence within the applicable Guidelines range is reason
able. In Rita we said as much, in fairly explicit terms: “We
repeat that the presumption before us is an appellate court
presumption. . . . [T]he sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence
should apply.” 551 U. S., at 351. And in Gall v. United
States, 552 U. S. 38 (2007), we reiterated that district judges,
in considering how the various statutory sentencing factors
apply to an individual defendant, “may not presume that the
Guidelines range is reasonable.” Id., at 50.
In this case, the Court of Appeals quoted the above lan
guage from Rita but affirmed the sentence anyway after
finding that the District Judge did not treat the Guidelines
as mandatory. That is true, but beside the point. The
Guidelines are not only not mandatory on sentencing courts;
they are also not to be presumed reasonable. We think it
plain from the comments of the sentencing judge that he did
apply a presumption of reasonableness to Nelson’s Guidelines
range. Under our recent precedents, that constitutes error.
The petition for certiorari and the motion for leave to pro
ceed in forma pauperis are granted. The judgment of the
Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice Breyer, with whom Justice Alito joins, con
curring in the judgment.
The Solicitor General confessed that the U. S. Court of Ap
peals for the Fourth Circuit erred. Given the nature of
the error, and in light of the Solicitor General’s confession,
I would grant the petition for certiorari, vacate the judgment
of the Court of Appeals, and remand for further proceedings.