                     NONPRECEDENTIAL DISPOSITION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 November 14, 2007
                             Decided January 9, 2008

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-1929

UNITED STATES OF AMERICA,                      Appeal from the United States
     Plaintiff-Appellee,                       District Court for the Northern
                                               District of Indiana, South Bend
      v.                                       Division

JOHN LULA,                                     No. 3:05cr0145AS
     Defendant-Appellant.
                                               Allen Sharp,
                                               Judge.

                                    ORDER

       John Lula challenges his sentence of 33 months in prison for possession of a
firearm by a felon. See 18 U.S.C. § 922(g)(1). He argues that the district court
presumed that a sentence within the guidelines range was the appropriate
sentence. We agree with that contention and thus vacate his sentence and remand
for resentencing.

       Lula’s conviction stems from an argument with a neighbor over a borrowed
tree trimmer. When the argument escalated, Lula entered his house and returned
moments later with what the neighbor believed was a gun. The neighbor called
police, but Lula vanished before they arrived. The police, though, discovered Lula
was a felon and notified federal agents, who secured a search warrant for his
residence and recovered a loaded gun and ammunition. Lula confessed to agents
No. 07-1929                                                                    Page 2


that it was his gun and ammunition. He was not arrested that day but later was
charged under § 922(g).

        A jury found Lula guilty on that charge. At sentencing the district court
expressed confusion as to its role in sentencing after United States v. Booker, 543
U.S. 220 (2005). The judge opined that our decisions are “hard to follow; they’re
hard to reconcile at times, but they are there—they’re a little like Mount
Rushmore—and it is hard to divine in a sentence or even a paragraph definitive
rules out of those decisions.” The court went on, explaining that United States v.
Nitch, 477 F.3d 933 (7th Cir. 2007), “revisited the process that we have to go
through and re-enunciated the rebuttable presumption regarding the following of
the Guidelines.” The court added: “There’s an awful lot of cases that talk about the
remaining rebuttable presumption when using the Guidelines. I don’t think I’m at
liberty yet to discard those cases, as much as I might want to on some occasions.”
The court next calculated a guidelines imprisonment range of 33 to 41 months, and
acknowledged its obligation to consider the factors outlined in 18 U.S.C. § 3553(a).
Finally, before announcing its 33-month sentence, the court stated, “I have looked
at all of the cases in which there have been sentences below the Guidelines that
were reversed,” and “I cannot escape the responsibility of this Court, consistent
with the law in this circuit, to impose the minimum sentence under the Guidelines.”

      Lula argues that the district court, as evidenced by the quoted statements,
thought it was bound by a rebuttable presumption that a within-guidelines
sentence is the appropriate sentence. A district court may not employ a
presumption that a sentence within the guidelines range is reasonable. Rita v.
United States, 127 S.Ct. 2456, 2465 (2007). Only an appellate court may apply that
presumption. Id.; United States v. Ross, 501 F.3d 851, 853 (7th Cir. 2007). At
sentencing, there is no “thumb on the scale in favor of a guidelines sentence.”
United States v. Wachowiak, 496 F.3d 744, 749 (7th Cir. 2007). In Wachowiak, we
recognized that Rita “validated our observation . . . that the sentencing judge is not
required—or indeed permitted—to presume that a sentence within the guidelines
range is the correct sentence.” Id. (internal citation and quotation marks omitted).
The guidelines serve as a starting point for the district court, and it must calculate
the guidelines range correctly, but a sentence must be based on the factors in §
3553(a) without any presumption favoring a term within the range. United States
v. Sachsenmaier, 491 F.3d 680, 684 (7th Cir. 2007).

       In this case we are not confident that the district court understood the
limited role of the presumption of reasonableness. The government asserts that the
district court’s language is ambiguous, and, true enough, it is difficult to glean from
the transcript just what the court thought the law requires. But we reject the
government’s contention that a “mere error” about the scope of the presumption
No. 07-1929                                                                   Page 3


should not require reversal. We have held previously that the proper remedy when
a district court has presumed that a term within the guidelines range was the
appropriate sentence is to vacate and remand for resentencing. See Ross, 501 F.3d
at 854.

       The district court did not have the benefit of Rita or Ross when it sentenced
Lula. In Ross we acknowledged that our prior cases did not always define the
presumption as an appellate presumption, see id. at 853, and that lack of
consistency may have tripped up the district court. But the fact remains that the
district court said it could not “escape the responsibility” of giving a guidelines
sentence.

      Accordingly, we VACATE the sentence and REMAND for resentencing.
