                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 07-3602
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Sharon L. Alexander,                    *
                                        *
            Appellant.                  *

      ___________                           Appeals from the United States
                                            District Court for the
      No. 07-3603                           Eastern District of Arkansas.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Vondra D. Alexander,                   *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: June 10, 2008
                                Filed: February 26, 2009
                                 ___________
Before LOKEN, Chief Judge, EBEL,1 and COLLOTON, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.

       Sharon and Vondra Alexander, who are sisters, each pled guilty to one count
of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. In
a joint proceeding, the district court sentenced each defendant to the bottom of her
applicable advisory guideline range. Sharon was sentenced to 87 months’
imprisonment and Vondra to 63 months’ imprisonment. Both appeal, arguing that the
district court committed procedural error in the course of imposing sentence. Because
we conclude that the district court impermissibly applied a presumption of
reasonableness to the advisory guideline range, we remand the cases for resentencing.

                                           I.

       In September 2004, the Federal Bureau of Investigation received reports of
missing mail order checks from the United Parcel Service (“UPS”) distribution center
in Little Rock, Arkansas. An investigation revealed that the missing checks were
being cashed at local retail establishments. Further inquiry revealed a three-tiered
scheme to steal and pass personal checks.

       At the first tier of the operation, three employees at the UPS distribution center
stole personal checks arriving at the facility. At the second tier, Sharon and Vondra
Alexander paid the UPS employees $100 per box of stolen checks. Sharon and
Vondra then acquired identification documents with names that matched those on the
checks. Some of the identification documents were counterfeit, produced using a
computer, scanner, printer, and laminating machine. Others were authentic


      1
       The Honorable David M. Ebel, United States Circuit Judge for the Tenth
Circuit, sitting by designation.

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identification documents that were stolen from the owners. The third tier of the
operation consisted of individuals passing the stolen checks. Sharon and Vondra
recruited at least seven individuals to pass the stolen checks. Either Sharon or Vondra
would drive a passer to a store, give the passer a stolen check and identification
document, and wait outside while the passer used the check to purchase merchandise
or gift cards. The passers gave any unused checks and the identity documents back
to Sharon or Vondra after returning to the car. Sharon or Vondra split half of the
proceeds of the passed checks with the individuals who passed the check, either by
letting the individual keep a portion of the merchandise or gift cards or by selling the
gift cards or merchandise at a discount and providing a portion of the proceeds of the
sale to the passers. Between January 2003 and December 2004, the operation passed
over $178,000 in stolen checks.

       On June 8, 2005, a grand jury indicted Sharon and Vondra, along with ten
others, on multiple charges in connection with stealing and passing the stolen checks.
Sharon and Vondra pled guilty to conspiracy to commit bank fraud, and the
government moved to dismiss the remaining charges against them. After calculating
that Sharon’s total offense level was 27 and that her criminal history category was III,
the district court sentenced her to 87 months’ imprisonment, the bottom of the
advisory guideline range. The court calculated Vondra’s total offense level at 26 and
criminal history category at I, and sentenced her to 63 months’ imprisonment, also the
bottom of the guideline range. Both defendants appeal.

                                           II.

                                           A.

       The Alexanders point to the district court’s explanation of its decision to impose
sentences within the advisory guideline range and argue that the court committed error
that requires resentencing. In the terminology of Gall v. United States, 128 S. Ct. 586

                                          -3-
(2008), which was decided after the sentencing in this case, the Alexanders present
a claim of “procedural error.” Id. at 597. The contention is based on the following
passages from the district court’s oral statement of reasons at sentencing:

      Well, the thing that I guess troubled me most about this cause from the
      outset is the sentences that a number of these individuals have received
      as opposed to the sentences for which these defendants were faced. But
      the problem in applying the guidelines here, I either throw the guidelines
      away or you apply the guidelines.

      And I’ve spoken my mind about the fairness of the guidelines and how
      in many cases they are not fair to all defendants. However, the Eighth
      Circuit has stressed the importance of applying the guidelines unless
      there are just circumstances which takes the case completely away from
      the guidelines. . . .

      I do think that Ms. Vondra Alexander is entitled to be sentenced at the
      low end of the guideline range. I can’t reconcile it with sentences that
      individuals got but I know the system works this way. . . . The way these
      things are charged, the way the plea agreements come down all leave me
      with very little discretion to apply this.

      So I can’t say that the guidelines here are totally unreasonable when I
      just consider the conduct of these two sisters. So I’m going to sentence
      both of them at the low end of the guideline range.

(S. Tr. 227-28) (emphasis added). Neither defendant objected at sentencing to the
district court’s procedures, so we consider whether the court’s approach constitutes
a plain error warranting relief under current law. See Johnson v. United States, 520
U.S. 461, 466-68 (1997).

      In light of the Supreme Court’s decisions in Gall, Rita v. United States, 127 S.
Ct. 2456 (2007), and United States v. Booker, 543 U.S. 220 (2005), the law is clear

                                         -4-
that the district court is charged with determining an appropriate sentence in light of
the factors set forth in 18 U.S.C. § 3553(a), and that the court must not accord the
advisory guideline range a presumption of reasonableness. Rita, 127 S. Ct. at 2465.
The Court in Gall thought it “uncontroversial” that a major variance from the advisory
range should be supported by a more significant justification than a minor variance,
Gall, 128 S. Ct. at 597, but held at the same time that an appellate rule requiring
“proportional” justifications for variances from the advisory guideline range is
inconsistent with Booker. Id. at 594. Gall also emphasized that appellate review for
“reasonableness” must be conducted under a deferential abuse-of-discretion standard.
Id. at 591.

        We think it plain that the district court’s approach in this case is inconsistent
with current law. A rule that the guidelines must be applied “unless there are just
circumstances which takes the case completely away from the guidelines,” or unless
the guideline sentence is “totally unreasonable,” is the functional equivalent of an
impermissible presumption of reasonableness. While we do not agree with the district
court’s entire assessment of circuit law as of November 2007, see United States v. Lee,
553 F.3d 598, 601-02 (8th Cir. 2009), the court evidently believed that it was bound
to apply the guidelines, without even a minor variance, unless the advisory sentence
was unreasonable and there were strong reasons that compelled a non-guideline
sentence. In any given case, however, there is a range of reasonable sentences. That
the guideline sentence is one reasonable option does not mean that a non-guideline
sentence is necessarily unreasonable, or vice-versa. See United States v. Solis-
Bermudez, 501 F.3d 882, 884-85 (8th Cir. 2007) (explaining that while sentences
within the advisory range are “presumptively reasonable” on appellate review, “[t]his
is not to say that non-Guidelines sentences are presumptively unreasonable; they are
not”). A guideline sentence often may be appropriate, given the Sentencing
Commission’s expertise and the statutory purpose of avoiding unwarranted sentence
disparities, see 18 U.S.C. § 3553(a)(6), but the district court must reach that
conclusion on its own in light of the § 3553(a) factors, not because the court of

                                          -5-
appeals precludes a non-guideline sentence in the absence of extraordinary
circumstances. See Gall, 128 S. Ct. at 595.

       We therefore conclude that the district court committed a plain procedural error
under current law. The record also demonstrates at least a reasonable probability,
though not necessarily a likelihood, that the district court would have imposed a more
lenient sentence without the error. The court remarked that “the thing that I guess
troubled me most about this cause from the outset is the sentences that a number of
these individuals have received as opposed to the sentences for which these
defendants were faced,” alluded to previous cases in which the court had “spoken [its]
mind about the fairness of the guidelines and how in many cases they are not fair to
all defendants,” and professed to have “very little discretion” in selecting a sentence.
(S. Tr. 227). These comments suggest that the district court, applying the correct
approach under the current sentencing regime, may well have chosen to impose a non-
guideline sentence for these defendants. These circumstances also meet the fourth
criteria for relief under the plain error standard. See United States v. Davis, 538 F.3d
914, 919 (8th Cir. 2008). Therefore, while expressing no view on the appropriate
sentences, we conclude that a remand is required.

                                          B.

       Sharon Alexander raises one other issue concerning the district court’s
calculation of her advisory guideline range. She argues that the court erred by
increasing her offense level by four levels, pursuant to USSG § 3B1.1(a), on the
ground that she was a leader or organizer of a criminal activity involving five or more
participants. Because this issue will recur at resentencing, we proceed to consider it.



      The guidelines explain that in evaluating whether a defendant was a leader or
organizer under § 3B1.1(a), the court should consider:

                                          -6-
      the exercise of decision making authority, the nature of participation in
      the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and scope
      of the illegal activity, and the degree of control and authority exercised
      over others.

USSG § 3B1.1, comment. (n.4). We review the district court’s enhancement of a
guideline sentence based on aggravating role in the offense for clear error. United
States v. Guzman-Tlaseca, 546 F.3d 571, 579-80 (8th Cir. 2008).

       We conclude that the district court did not clearly err in finding that Sharon was
a leader or organizer of the plan to pass stolen checks. The district court found by a
preponderance of the evidence that Sharon bought stolen checks from UPS
employees, recruited individuals to pass the checks, “arranged times and places to
pass these checks,” sometimes directed passers what to purchase with the checks,
shared in the proceeds of the fraudulent checks, and generally “started the ball rolling
and essentially oversaw how it was going to be.” (S. Tr. 204). The court also found
that Sharon “derived more income from this enterprise than any of the individual
check passers,” because she was involved with many different check passers. (S. Tr.
205). There is no dispute that the criminal activity involved five or more participants.
The district court’s findings are adequately supported by the record, and they amply
justify the finding that Sharon was a leader or organizer of a criminal activity
involving five or more individuals.

                                   *       *       *

      For the foregoing reasons, we vacate the judgments and remand the cases for
resentencing.
                      ______________________________



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