                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-1121
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellant,
                                  v.

GARY ROBERSON,
                                                 Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 03 CR 855-4—Joan B. Gottschall, Judge.
                          ____________
   ARGUED NOVEMBER 7, 2006—DECIDED JANUARY 17, 2007
                          ____________


  Before EASTERBROOK, Chief Judge, and POSNER and WOOD,
Circuit Judges.
  POSNER, Circuit Judge. The defendant, with three accom-
plices, committed an armed bank robbery, netting $133,000,
of which the defendant’s share was $50,000. He was
charged with both bank robbery, 18 U.S.C. §§ 2113(a), (d),
and using a firearm in a crime of violence (which bank
robbery is). 18 U.S.C. § 924(c)(1)(A). It is unclear, but also
irrelevant, whether he was carrying a gun. One of his
accomplices brandished a gun, and a defendant is liable
for the reasonably foreseeable crimes committed by his
accomplices in the course of the conspiracy, Pinkerton v.
2                                                 No. 06-1121

United States, 328 U.S. 640, 646-48 (1946); United States v.
McLee, 436 F.3d 751, 758 (7th Cir. 2006); United States v.
Rawlings, 341 F.3d 657, 660 (7th Cir. 2003), whether or not
a conspiracy is charged. United States v. Chairez, 33 F.3d
823, 827 (7th Cir. 1994); United States v. Lopez, 271 F.3d 472,
480-81 (3d Cir. 2001).
  The defendant pleaded guilty to both crimes. The dis-
trict judge sentenced him to one month in prison for the
bank robbery and 84 months, to run consecutively to the
robbery sentence, for the gun offense. Eighty-four months
is the minimum sentence for the section 924(c)(1)(A)
offense if the gun is “brandished,” § 924(c)(1)(A)(ii), and
a section 924(c)(1) sentence cannot be made to run con-
currently with any other sentence. § 924(c)(1)(D).
  The government appeals, challenging the total sen-
tence of 85 months as unreasonably low. The minimum
guidelines sentence for a bank robbery that does not
involve the use of a gun is 46 months, and when the
consecutive 84-month sentence required by section
924(c)(1) is tacked on to the minimum guidelines sentence,
the total is 130 months.
  The judge based the sentence on a disagreement with
Congress: “I find a 130 month sentence unreasonable on
the facts of this case and contrary to the purposes of
sentencing under §3553. Because I have no power to
adjust the 84 month consecutive sentence, I have no
alternative but to adjust the 46 month guideline part of the
sentence so that the sentence, as a whole, is reasonable.”
Were it not for section 924(c)(1), the guidelines range for
the defendant’s crime would have been 78 to 97 months;
the sentence that the judge imposed was within that range.
With section 924(c)(1) in the picture, the guidelines range
is initially 46 to 57 months, the range for bank robbery
No. 06-1121                                              3

without use of a gun (78 to 97 months is the range for a
bank robbery that does involve the use of a gun, if the
government does not charge a violation of section
924(c)(1)). But 84 months must be added when there is a
conviction under that section as well, and the effect is to
increase the sentencing range for defendant Roberson
from 46 to 57 months to 130 to 141 months.
  The judge thought that automatically adding 84 months
to the sentence for the bank robbery in which the gun
was used unreasonably limited her discretion. She is of
course entitled to her view, but she is not entitled to
override Congress’s contrary view. The Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005),
which made the sentencing guidelines advisory, did not
authorize district judges to ignore statutory sentenc-
ing ranges. United States v. Cannon, 429 F.3d 1158, 1161
(7th Cir. 2005); United States v. Eura, 440 F.3d 625, 633
(4th Cir. 2006). That would be obvious had the govern-
ment asked the district judge to impose a sentence of 30
years on the bank-robbery count, when the statutory
maximum is only 25 years. It would be obvious had the
defendant asked the judge to sentence him to 34 months on
the section 924(c)(1) charge, when the statutory minimum
is 84 months. But that is in effect what the judge did. For
the approximate midpoint of the bank robbery guide-
lines range, 51 months, is only 34 months short of the
sentence she imposed.
  The judge may have been misled by the fact that the
standard for appellate review of sentences under the
regime of Booker is reasonableness. A sentence could be
“reasonable” in a layman’s sense even though it was
outside the statutory sentencing range. But it would not
be reasonable in a legal sense. Booker confers no authority
on judges to disregard statutes.
4                                               No. 06-1121

  A further justification that the judge offered for the
sentence she imposed was that the government should
not have charged a violation of section 924(c)(1). The judge
regarded that as overkill. She thus was criticizing the
government for how it had exercised its prosecutorial
discretion. The judiciary has no authority to second-guess
the government’s choice of which crimes to charge, United
States v. LaBonte, 520 U.S. 751, 761-62 (1997); United States
v. Wicks, 132 F.3d 383, 389-90 (7th Cir. 1997), unless the
choice is based on an invidious ground, United States v.
Armstrong, 517 U.S. 456, 464-65 (1996), which is not sug-
gested.
  So the judge should have picked a sentence for the bank
robbery without regard for the fact that a gun had been
used in it, and then tacked on 84 months. Although that is
not how she proceeded, she did think there were mitigat-
ing factors that entitled her to reduce the sentence for bank
robbery below the guidelines range (for gun-less bank
robberies) of 46 to 57 months. But could she reasonably
have believed, had section 924(c)(1) not been in the pic-
ture, that a sentence of only one month would be rea-
sonable? Not that she did believe that. It was the manda-
tory minimum sentence in section 924(c)(1) that caused
her to make so drastic a reduction of a normal sentence
for bank robbery.
  Booker requires the sentencing judge to begin the sen-
tencing process by determining the applicable guidelines
range, but permits her, so long as she does not stray
outside the statutory sentencing range, to sentence the
defendant below or above the guidelines range if the
sentencing factors in the Sentencing Reform Act, 18 U.S.C.
§ 3553(a), warrant, and we must uphold such a sentence
as long as it is reasonable. As there is no statutory mini-
No. 06-1121                                                 5

mum for bank robbery, it is conceivable that a one-month
sentence would be reasonable, but it would have to be an
extraordinary case. Extraordinary not only because such
a sentence would be so far below the guidelines range,
but also because, the guidelines to one side (for they are,
after all, just advisory now), bank robbery is a very seri-
ous crime. The defendant was an adult, was compos mentis,
stole an unusually large amount of money for a bank
robbery, was a gang member who refused to cooperate
with the police out of loyalty to the gang, and was on
probation for an attempted armed robbery when he
committed the bank robbery. One might have expected
these factors to push his sentence to the top of the guide-
lines range or even above it, and certainly to exclude the
possibility that a one-month sentence would be reasonable.
As the judge remarked, beginning when he was 18 the
defendant “became something of a one man crime wave.”
  Although our review of a sentence that is within the
statutory range is deferential, it is not abject; and in this
case the unreasonableness of the judge’s one-month
sentence for the bank robbery is palpable. Some of the
factors on which she relied (apart from her disagreement
with Congress and with the government’s charging
decision) cannot be tied to the sentencing factors in
section 3553(a), which are to guide the sentencing judge
under the Booker regime. United States v. Booker, supra,
543 U.S. at 259-61; United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006); United States v. Arevalo-Juarez, 464 F.3d
1246, 1249-51 (11th Cir. 2006). These include the “hopeful
signs” (in her words) that the defendant “voluntarily”
disclosed to the officers who arrested him for attempted
armed robbery that he had a gun—but the officers were
about to search him—and that he turned himself in for the
6                                                No. 06-1121

bank robbery—but the FBI had already arrested one of
his accomplices and the defendant refused to cooperate
when he was arrested or to reveal where he had stashed
his share of the proceeds of the robbery. Other factors on
which the judge relied, such as that the defendant was
only 19 when he committed the robbery, that he had been
a good student in elementary school, and that he had a
supportive family, were, though meager, admissible as
evidence that he might have a better chance of going
straight than other bank robbers. But the second and
third factors were two-edged. Had the defendant been a
very poor student and come from a broken home, these
would have been argued as mitigating factors. The better
off a defendant is, the better chance he has to go
straight when he is released from prison—but the more
inexcusable his criminal conduct. See Harris v. Cockrell,
313 F.3d 238, 244 (5th Cir. 2002); Faulder v. Johnson, 81
F.3d 515, 519 (5th Cir. 1996); cf. In re Andrews, 52 P.3d 656,
669-70 (Cal. 2002). Still another factor considered by the
judge was completely speculative: that if the defendant
was imprisoned for most of his 20s (he was 21 when
sentenced), it would preclude his rehabilitation when he
was released.
  So not only are the factors on which the district judge
was entitled to rely too attenuated to justify a one-month
sentence for a major bank robbery, but they were not
weighed in a reasonable manner. The judge failed to
consider their equivocal character—how they increased
the defendant’s culpability at the same time that they
improved his prospects for rehabilitation—or to compare
them with the aggravating factors, such as the fact that
the defendant was on probation when he committed the
crime, the size of the haul, and his lack of cooperation
No. 06-1121                                                   7

with the police. United States v. Boscarino, 437 F.3d 634,
638 (7th Cir. 2006); United States v. Fuentes, 107 F.3d
1515, 1523-24 (11th Cir. 1997); United States v. Bailey, 955
F.2d 28, 29 (8th Cir. 1992). An exercise of discretion, in
sentencing as in other settings, cannot be affirmed when
the judge fails to consider and weigh the factors that bear
on its exercise. As we said in another sentencing case,
“Whenever a district judge is required to make a dis-
cretionary ruling that is subject to appellate review, we
have to satisfy ourselves, before we can conclude that
the judge did not abuse his discretion, that he exercised
his discretion, that is, that he considered the factors
relevant to that exercise.” United States v. Cunningham, 429
F.3d 673, 679(7th Cir. 2005); see also United States v. Jackson,
467 F.3d 834, 841 (3d Cir. 2006).
  It remains to consider whether a sentencing judge can
give any weight (clearly she gave too much weight) to the
aggregate sentence produced when the minimum 84-
month sentence specified in section 924(c)(1)(A)(ii) is
tacked on to the guidelines sentence for the underlying
crime. The district judge was correct that there are
two statutes in play and that they are not completely
harmonious. The Sentencing Reform Act requires consider-
ation of a range of factors with no particular weight
given to each, while section 924(c)(1) specifies minimum
sentences regardless of any other factors bearing on the
appropriateness of a sentence, including the length of the
sentence that the specified minimum sentence is to be
added on to. But to use the presence of a section 924(c)(1)
add-on to reduce the defendant’s sentence for the under-
lying crime would be inconsistent with Congress’s deter-
mination to fix a minimum sentence for using a firearm in
a crime of violence. If the judge reduces the defendant’s
8                                                 No. 06-1121

sentence on the underlying crime of violence from, say,
50 to 49 months because the defendant used a gun and
therefore (if it was brandished) must be sentenced to 84
months on top of the sentence for the underlying crime,
the effect is to reduce the statutory minimum sentence
from 84 months to 83 months.
  We acknowledge the tension with section 3553(a), but
that very general statute cannot be understood to authorize
courts to sentence below minimums specifically pre-
scribed by Congress. United States v. Gregg, 451 F.3d 930,
937 (8th Cir. 2006); cf. U.S.S.G. § 5G1.2(a). That was the rule
when the guidelines were mandatory, United States v.
Goines, 357 F.3d 469, 471 (4th Cir. 2004); United States v.
Working, 287 F.3d 801, 807 (9th Cir. 2002); United States v.
Winters, 174 F.3d 478, 483-84 (5th Cir. 1999); United States v.
Caldwell, 985 F.2d 763, 765-66 (5th Cir. 1993) (per curiam),
and it was not changed by Booker. For in making the
sentencing guidelines advisory, the Court did not authorize
courts to sentence below the minimums prescribed not by
the guidelines but by constitutional federal statutes. United
States v. Shelton, 400 F.3d 1325, 1333 n. 10 (11th Cir. 2005).
“Booker has nothing to do with minimum sentences.”
United States v. Cannon, supra, 429 F.3d at 1160. “The
judiciary is not free to replace Congress’s approach with
one that it deems superior.” United States v. Miller, supra,
450 F.3d at 275; see United States v. Shelton, supra, 400 F.3d
at 1333 n. 10.
  The district judge was therefore required to determine
the proper sentence for the bank robbery entirely inde-
pendently of the section 924(c)(1) add-on; and in light of
the aggravating factors that we have discussed, a sen-
tence below the minimum guidelines sentence for the
No. 06-1121                                               9

robbery in this case would be difficult, perhaps impossible,
to justify as reasonable.
  The judgment is reversed with instructions to the
district judge to resentence the defendant in conformity
with this opinion.
                                REVERSED AND REMANDED.

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-17-07
