                 Cite as: 555 U. S. ____ (2009)           1

                          Per Curiam

SUPREME COURT OF THE UNITED STATES
        LAWRENCE W. 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


   PER CURIAM.
   Lawrence Nelson was convicted of one count of conspir
acy 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 im
posed a sentence of 360 months in prison (the bottom of
the range). During sentencing, the judge explained that
under Fourth Circuit precedent, “ ‘the Guidelines are
considered presumptively reasonable,’ ” so that “ ‘unless
there’s a good reason in the [statutory sentencing] fac
tors . . . , the Guideline sentence is the reasonable sen
tence.’ ” 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 presump
tively reasonable, 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. ___ (2008).
   On remand and without further briefing, the Fourth
Circuit again affirmed the sentence. 276 Fed. Appx. 331
(2008) (per curiam). The court acknowledged that under
2                NELSON v. UNITED STATES

                         Per Curiam

Rita, while courts of appeals “may apply a presumption of
reasonableness 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 sen
tence should apply,” id., at 351. Instead, the sentencing
court must first calculate the Guidelines range, and then
consider what sentence is appropriate for the individual
defendant in light of the statutory 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 “mandatory” 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
statements clearly indicate that it impermissibly applied a
presumption of reasonableness to his Guidelines range.
The United States admits that the Fourth Circuit erred in
rejecting 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
reasonable. 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. ___ (2007), we reiter
ated that district judges, in considering how the various
statutory sentencing factors apply to an individual defen
dant, “may not presume that the Guidelines range is
reasonable.” Id., at ___ (slip op., at 11–12).
  In this case, the Court of Appeals quoted the above
language from Rita but affirmed the sentence anyway
                 Cite as: 555 U. S. ____ (2009)                  3

                          Per Curiam

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 rea
sonable. We think it plain from the comments of the
sentencing judge that he did apply a presumption of rea
sonableness to Nelson’s Guidelines range. Under our
recent precedents, that constitutes error.
  The petition for certiorari and the motion for leave to
proceed 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.
                  Cite as: 555 U. S. ____ (2009)            1

               BREYER, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
         LAWRENCE W. 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


  JUSTICE BREYER, with whom JUSTICE ALITO joins, con
curring in the judgment.
  The Solicitor General confessed that the U. S. Court of
Appeals 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 judg
ment of the Court of Appeals, and remand for further
proceedings.
