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

No. 05-3624
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

NOLAN R. NELSON,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
           No. 02 CR 30107—Richard Mills, Judge.
                        ____________
  ARGUED SEPTEMBER 27, 2006—DECIDED JUNE 21, 2007
                  ____________


 Before POSNER, MANION, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. What is the meaning of life?
Or perhaps more pointedly, what is the equivalent of a
term of life imprisonment for sentencing purposes? In this
appeal, we are presented with that very question as we
review the district court’s calculation of Nolan Nelson’s
sentence. Nelson, age 30, faced a mandatory minimum
sentence of life imprisonment after he pleaded guilty to
his third felony drug conviction. Because Nelson decided
to cooperate with the government, the district court re-
duced his sentence to 262 months (21.8 years). Nelson now
appeals, citing error in the district court’s guideline
calculation because it declined to use, as the starting
point for its departure, the lowest offense level in the
2                                               No. 05-3624

United States Sentencing Guidelines associated with the
range of “360-life,” or level 37. The district court instead
chose to calculate the sentence reduction from the higher
offense level of 43, which corresponds to the guideline
range of “life.” We affirm the judgment of the district court
because we do not accept Nelson’s argument that the
sentencing judge erred in calculating his advisory range
in a manner that most closely reflects a plain reading of
the Guidelines. In reaching this conclusion, we also note
that the district court’s methodology resulted in a lower
sentence than Nelson would have received if the court had
used his life expectancy to calculate his reduced sentence.


                   I. BACKGROUND
  Between 1998 and 1999, Nolan Nelson transported crack
cocaine from Chicago to Quincy, Illinois where he distrib-
uted the drugs through various individuals. Nelson’s
operation eventually led to his indictment in 2002 for
conspiracy to distribute more than fifty grams of crack
cocaine and more than five kilograms of powder cocaine,
possession of crack cocaine with intent to distribute, and
distribution of crack cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. After his arrest, Nelson agreed to
cooperate with the government and pled guilty to the
conspiracy charge in exchange for the government’s
agreement to dismiss the remaining charges against him.
  After the application of various adjustments that are
not at issue on appeal, Nelson’s total offense level of 34
and criminal history category of VI resulted in a guide-
line range between 262 and 327 months.1 Nelson’s two
previous felony drug offenses, however, subjected him to


1
  The 2004 edition of the Guidelines Manual was used to
calculate Nelson’s advisory range.
No. 05-3624                                                    3

a mandatory minimum sentence of life imprisonment. See
21 U.S.C. § 841(b)(1)(A). Because Nelson’s mandatory life
sentence is greater than the maximum of his applicable
guideline range, the Guidelines advise that the life sen-
tence become his guideline sentence. See U.S.S.G.
§ 5G1.1(b).
  At sentencing, the government asked the district court
to impose a sentence below that of life to reflect Nelson’s
cooperation and assistance in the government’s investi-
gation and prosecution of a number of figures involved
in Nelson’s drug operation. See 18 U.S.C. § 3553(e).2 The
government regarded Nelson’s assistance as having “far
reaching value” and, therefore, worthy of its “exceedingly
rare” recommendation that his mandatory sentence be
reduced by four sentencing guideline ranges. The govern-
ment suggested that the district court carry out the
reduction by starting from offense level 43, the level
associated with a life sentence. See U.S.S.G. Ch. 5, Pt. A.
Next, the district court was asked to “clump” the six
guideline ranges of “360-life” under category VI (offense
levels 42 to 37) “together into one.” Id. The government
then recommended that the district court “go down three
more from that” to arrive at offense level 34 and sentence
Nelson at the bottom of the range. Based on Nelson’s
criminal history category of VI, this translated to a
guideline range of 262 to 327 months3 and a final sentence
of 262 months.


2
   This provision states in part: “Upon motion of the Government,
the court shall have the authority to impose a sentence below a
level established by statute as a minimum sentence so as to
reflect a defendant’s substantial assistance in the investiga-
tion or prosecution of another person who has committed an
offense.”
3
 Notably, this would have been Nelson’s guideline range if he
were not subject by statute to a mandatory life sentence.
4                                               No. 05-3624

   Nelson, in turn, argued that the applicable guideline
range for his mandatory life sentence was the “360-life”
range, and, as such, the district court should calculate
his sentence by starting from offense level 37, the lowest
offense level that supports a sentence of 360 months to
life. By Nelson’s methodology, a downward departure of
four (from offense level 37 to 33) would result in a range of
235 to 293 months. Nelson therefore recommended that
the district court sentence him at the bottom of this range
to 235 months, approximately two years less than the
government’s proposed sentence.
   After considering the parties’ recommendations, the
sentencing judge agreed that Nelson’s cooperation with the
government entitled him to a sentence below his manda-
tory minimum of life and granted the government’s
§ 3553(e) motion. The judge then stated that the govern-
ment’s proposed reduction of four guideline ranges resulted
in a total departure of nine offense levels from level 43 to
34 and was the equivalent of a 40% reduction in Nelson’s
life sentence.4 As the judge commented, this reduction was
“extremely generous” and “a rare beast” as a 20% reduc-
tion is more common based on sentences that he and other
judges have imposed. Nelson was ultimately sentenced to
262 months’ imprisonment and now appeals.


                     II. ANALYSIS
  We begin by addressing the government’s contention
that Nelson waived his right to challenge the district
court’s calculation of his sentence because he agreed to it


4
  In Nelson’s criminal history category of VI, the term of
imprisonment associated with each guideline range between
offense levels 12 and 37 increases by approximately 10%. See
U.S.S.G. Ch. 5, Pt. A.
No. 05-3624                                                5

before and at sentencing. It is true that by pleading guilty,
Nelson agreed that “the effect of the mandatory life
sentence is to make the offense level 43.” See Plea Agmt.
at 8. He also waived his right to challenge the manner
in which his sentence was determined in exchange for
the opportunity to cooperate with the government and
earn a downward departure. Id. at 4. However, Nelson’s
plea agreement included a provision preserving his right
to appeal if the district court calculated his sentence “on
any basis other than by using, as the starting point for
that departure, the bottom of the lowest guideline level
and range that includes a potential life sentence.” Id.
Nelson’s appeal raises this very issue because he argues
that the district court erred in its calculation by starting
from the highest guideline level associated with a life
sentence. He therefore has preserved his challenge for
appellate review.
  As we turn to the merits of Nelson’s case, we of course
recognize that the Guidelines are now advisory, United
States v. Booker, 543 U.S. 220, 245 (2005); nonetheless,
the Guidelines still demand consideration by a sentenc-
ing judge, id. at 259-60; United States v. Chamness, 435
F.3d 724, 726 (7th Cir. 2006). This means that the sen-
tencing judge must first correctly calculate the advisory
guideline range and then, based on the sentencing
factors set out in 18 U.S.C. § 3553(a), decide whether to
impose a sentence within that range. United States v.
Orozco-Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006).
Nelson’s appeal challenges only the district court’s cal-
culation, which we review de novo. See Chamness, 435
F.3d at 726.
  The district court arrived at Nelson’s sentence after it
granted the government’s § 3553(e) motion to sentence
him below the statutory minimum of life imprisonment
to reflect the amount of assistance he provided to the
6                                               No. 05-3624

government. In recommending the extent of the departure,
the government’s attorney remarked, “if the defendant
was looking at anything other than mandatory life, I would
be recommending 40 percent as the departure. . . . [But,]
where do you start with when you’re trying to assess
what’s 40 percent, what does that mean when you’re
talking about mandatory life? 40 percent of what?” Sent.
Hr’g Tr. at 11-12. The government then suggested that
the district court use the Sentencing Table to calculate
Nelson’s guideline range by using offense level 43 (life)
in criminal history category VI as a starting point. Id. at
12-13; see U.S.S.G. Ch. 5, Pt. A.
   On appeal, Nelson argues that the district court errone-
ously calculated his guideline range by choosing level 43
as the starting point for its departure instead of 37, which
is associated with the 360-life range in a criminal history
category of VI. Id. In support of his approach, Nelson relies
on our decision in United States v. Hayes, 5 F.3d 292,
294 (7th Cir. 1993), where we considered a defendant’s
challenge to his forty-seven-month sentence imposed after
the district court conducted a two-level downward depar-
ture from the applicable mandatory minimum of sixty
months. In arriving at this sentence, the district court
“first observed that the lowest United States Sentencing
Guidelines . . . offense level for which a 60-month sentence
could have been given is 24. Departing downward two
levels for Hayes’ substantial assistance results in an
offense level of 22, which carries a sentencing range of 41
to 51 months.” Hayes, 5 F.3d at 294. The defendant Hayes’
sentence of forty-seven months fell within that range. Id.
Hayes claimed error, arguing that the district court was
required to sentence him within a guideline range of
twenty-one to twenty-seven months, the range associated
with his original offense level and criminal history cate-
gory. Id. We disagreed and explained that because the
defendant’s statutorily required minimum sentence of sixty
No. 05-3624                                                 7

months was greater than his applicable guideline range,
the statutory sentence became his guideline sentence. Id.
at 294-95 (quoting U.S.S.G. § 5G1.1(b)). We ultimately
affirmed the sentence, finding that the district court’s
method of “starting with the lowest offense level consistent
with a 60-month sentence and departing downward two
levels from that point [was] linked appropriately to the
structure of the Guidelines.” Id. at 295. According to
Nelson, it follows from our holding in Hayes that a sen-
tencing judge who decides to depart from a mandatory
minimum sentence of life should begin the downward
departure from the lowest offense level consistent with
that mandatory sentence, which in his case, Nelson argues,
is level 37 (360-life). Nelson’s position, however, overstates
our holding in Hayes and misinterprets the Guidelines.
  Our focus in Hayes was the calculation of a downward
departure for substantial assistance and the extent of
such a departure. See id. There, we stated that, because
of Hayes’ mandatory minimum sentence, “[t]he appropri-
ate starting point for [his] downward departure was 60
months,” not, as he suggested, the guideline range that
resulted from his original offense level and criminal
history category. Id. We went on to consider the district
court’s two-level downward departure and concluded that
the extent of the departure was “linked appropriately to the
structure of the Guidelines.” Id. (citing United States v.
Thomas, 930 F.2d 526, 531 (7th Cir. 1991) (“These [guide-
line] provisions suggest that departures based on a defen-
dant’s cooperation with authorities may warrant some-
thing on the order of a two-level adjustment . . . .”),
overruled on other grounds by United States v. Canoy,
38 F.3d 893, 906 (7th Cir. 1994)). Our opinion was silent,
however, on the point from which a sentencing judge
must begin its downward departure from a mandatory
minimum when confronted with more than one guideline
range that encompasses the statutory sentence.
8                                               No. 05-3624

   We now return to the calculation of Nelson’s sentence.
His prior criminal history subjected him to a manda-
tory minimum of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A). Because that sentence is higher than
Nelson’s original guideline range of 262 to 327 months,
§ 5G1.1(b) of the Guidelines advises that his mandatory
life sentence become his guideline sentence. A sentencing
judge who chooses to depart downward from a mandatory
minimum pursuant to 18 U.S.C. § 3553(e) may calculate
the departure by quantifying the defendant’s assistance
either “by a simple numerical reduction in the offense
level or by a percentage reduction of the total
sentence . . . .” United States v. Senn, 102 F.3d 327, 332
(7th Cir. 1996).
   In Nelson’s case, the sentencing judge chose to reduce his
life sentence by offense levels and begin the down-
ward departure from level 43. In arguing that this was
error, Nelson presumes that the applicable guideline range
for a mandatory life sentence is 360 months to life. This
presumption would be reasonable had this range been
provided as the highest within which a defendant could
be sentenced in a criminal history category of VI. How-
ever, the Guidelines go a step beyond 360 to life and set
out a range of “life.” See U.S.S.G. Ch. 5, Pt. A. Because
Nelson is subject to the longest sentence a defendant
can receive under the Guidelines, his corresponding
guideline range should reflect the same. Accordingly, a
straightforward interpretation of the Guidelines requires
a finding that the applicable guideline range for a manda-
tory minimum sentence of life is life, which can only be
found at offense level 43. Id. Nelson is unable to provide us
with any authority that would persuade us to read the
Guidelines differently and find error in the district court’s
No. 05-3624                                                      9

methodology.5 The language of the Guidelines is clear;
therefore, we conclude that the district court’s decision to
depart from Nelson’s mandatory life sentence by start-
ing at offense level 43 was proper.
  We note that the sentencing judge could have cal-
culated Nelson’s sentence by a percentage reduction of his
total sentence. See Senn, 102 F.3d at 332. At sentencing,
the government indicated that it was faced with the
impossible task of predicting the future to determine
the length of Nelson’s life sentence; however, such clair-
voyance is unnecessary when life expectancy figures
are available. Although the Guidelines themselves pro-
vide no numerical equivalent for a life sentence, the 2006
Sourcebook of Federal Sentencing Statistics (“Sourcebook”)
tells us that the Sentencing Commission defines a life
sentence as 470 months. See Sourcebook, Appendix A, at
http://www.ussc.gov/ANNRPT/2006/ appendix_A.pdf (last
visited June 19, 2007); Keller, 413 F.3d at 711. This figure
reflects the average life expectancy of federal defendants
at the time of sentencing as determined by the United
States Census Bureau. See 2005 Sourcebook, Appendix A


5
   In his brief, Nelson cites United States v. Burns, 438 F.3d 826,
831 (8th Cir. 2006), which affirmed a district court’s reduction
of a defendant’s mandatory life sentence by departing from 360
months. Burns, however, was vacated and rehearing en banc
granted shortly after Nelson filed his opening brief. In that case,
the government recommended that the district court depart
from 360 months to reflect the defendant’s substantial assistance.
438 F.3d at 828. In that now-vacated opinion, the Eighth Cir-
cuit affirmed, concluding, inter alia, that “the district court
properly departed from a presumptive life sentence of 360
months.” Id. at 831. But see United States v. Keller, 413 F.3d 706,
711 (8th Cir. 2005) (affirming a district court’s use of 470 months
as the equivalent of the defendant’s mandatory life sentence to
calculate a percentage reduction based on his substantial
assistance).
10                                                 No. 05-3624

at http://www.ussc.gov/ANNRPT/2005/Appendix_A_Post.
pdf (last visited June 19, 2007). If we apply this figure
to Nelson’s case, we arrive at a sentence of 282 months
(470 months discounted by 40%), which is approximately
two years longer than the sentence Nelson received of 262
months.6 The district court’s approach therefore resulted
in a more favorable sentence for Nelson than had the court
based its reduction on his life expectancy. Because the
district court did not err in calculating Nelson’s guide-
line range, we affirm.


                    III. CONCLUSION
    The judgment of the district court is AFFIRMED.




6
  Alternatively, if the district court had used Nelson’s life
expectancy as a thirty-year old African-American male of 500
months, see National Vital Statistics Reports, Vol. 54, No. 14,
April 19, 2006 at 3, http://www.cdc.gov/nchs/data/nvsr/nvsr54/
nvsr54_14.pdf (last visited June 19, 2007), it would have arrived
at a sentence of 300 months, three years longer than Nelson’s
sentence of 262 months. In highlighting the differences in
sentences that can result from using an average versus a more
individualized life expectancy figure, we do not mean to endorse
one approach over the other. Indeed, both are imperfect mea-
sures of life expectancy as one fails to consider a defendant’s
individual characteristics, and the other omits the impact of
incarceration. We leave it to the Sentencing Commission to
decide which method provides a superior estimate of life expec-
tancy, or, better yet, to formulate figures that account for age,
race, gender, and incarceration.
No. 05-3624                                        11

A true Copy:
      Teste:

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




               USCA-02-C-0072—6-21-07
