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

No. 07-1215
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.

WILLIAM ROSS III,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 03 CR 689-20—Joan B. Gottschall, Judge.
                          ____________
  ARGUED AUGUST 7, 2007—DECIDED SEPTEMBER 11, 2007
                    ____________


  Before BAUER, KANNE, and ROVNER, Circuit Judges.
  PER CURIAM. William Ross challenges his 78-month
sentence for his role in a conspiracy to possess and distrib-
ute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a)(1).
Because it appears from the record that the district court
improperly applied a presumption of reasonableness for
a within-guidelines sentence, we vacate the sentence and
remand for resentencing.
  Ross, along with 16 codefendants, was indicted for a
drug conspiracy that began in 1995 and lasted until 2003.
Two days before trial he pleaded guilty to the conspiracy
charge (a second count was dropped, although the parties
insist that there was no bargain). At the change-of-plea
2                                               No. 07-1215

hearing, the district court explained to Ross that it
would apply the guidelines to his case and calculate “a
range of months within which I am supposed to sentence
you.” The court added: “I do have the power to give you a
different sentence, but I need some kind of good reason to
do it. Otherwise I have to give you the guideline sentence.”
  Before sentencing Ross sought to take advantage of the
“safety valve,” see 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a),
and met with government agents to explain his role in the
conspiracy. During that interview Ross admitted that
seven times between 1995 and 1997 he received drugs
from his confederates; one transaction involved about
20 pounds of marijuana and others a kilogram or more of
cocaine. But after that, he said, he had no more contact
with other members of the conspiracy until 2002, when he
called one of his confederates to inquire about the price of
cocaine but did not obtain any.
  At sentencing the parties agreed that Ross’s truthful-
ness during this safety-valve interview made him eligible
for a sentence below the statutory minimum. They also
agreed that the appropriate guidelines imprisonment
range was 78 to 97 months. Ross argued that the district
court should sentence him below this range based on his
disclosures to the government and his short-lived involve-
ment in the drug conspiracy. According to the probation
officer, Ross had maintained steady, legitimate employ-
ment at a McDonald’s, a car wash, and his own ultimately
unsuccessful businesses once he stopped dealing drugs
with his confederates. For its part, the government asked
the court to sentence Ross within the guidelines range,
arguing that his cooperation already was accounted for
by the safety valve and stressing the significant quantity
of cocaine and marijuana he received.
  When announcing the sentence, the district court noted
that it could not see “any reason why the guideline sen-
No. 07-1215                                               3

tence isn’t appropriate in this case.” Justifying the sen-
tence imposed, the court stated:
    The fact that I may think that the harm that’s done by
    a sentence like this in terms of Mr. Ross’ family
    members and his children may be greater than is
    necessary to deal with the drug problem, that doesn’t
    matter, because it isn’t my judgment that rules on
    that. It’s Congress’ judgment. All I can do is accept
    that we’re dealing with a regime which punishes
    people very severely for dealing drugs, there were a
    lot of drugs in this case, and give Mr. Ross the lowest
    sentence that’s possible in recognition of the fact that
    he’s tried to work legitimately, to the extent he’s
    been able to do that, that he’s got a very close family,
    that he’s got kids, that he’s done right by them, and
    there all those good factors in this case, and I have
    taken them into consideration.
The court sentenced Ross to 78 months’ imprisonment, the
bottom of the guidelines range.
  On appeal Ross argues that the district court errone-
ously deemed the guidelines to be binding. According to
Ross, the court thought it could not impose a sentence
below the guidelines imprisonment range even after
concluding that a lower sentence would be more appro-
priate. In our view, however, Ross’s characterization of the
district court’s position goes too far. The guidelines of
course still “serve as a necessary starting point” in the
sentencing court’s deliberations, but they are advisory, not
mandatory. United States v. Jointer, 457 F.3d 682, 686
(7th Cir. 2006); see also United States v. Mykytiuk, 415
F.3d 606, 607-08 (7th Cir. 2005). It would be a stretch
for us to conclude that a district court would not know—
some two years after the decision in United States v.
Booker, 543 U.S. 220 (2005)—that the sentencing guide-
lines are not binding. We are confident, then, that the
4                                              No. 07-1215

district court recognized its discretion to select a sen-
tence—within or outside the guidelines range—in light of
the factors set forth in 18 U.S.C. § 3553(a). See United
States v. Ngatia, 477 F.3d 496, 501 (7th Cir. 2007); United
States v. Dean, 414 F.3d 725, 730-31 (7th Cir. 2005) (“[T]he
guidelines, being advisory, can be trumped by section
3553(a), which as we have stressed is mandatory.”).
Indeed, contrary to Ross’s contention, the district court
explicitly acknowledged its power to impose a sentence
outside the guidelines range.
  But Ross’s argument points to a more subtle error. He
suggests that the district court, in settling on 78 months,
erroneously presumed that a within-guidelines sentence
was appropriate instead of a fashioning a sentence with
reference to the § 3553(a) factors. That approach was
endorsed in United States v. Wurzinger, 467 F.3d 649,
650-51 (7th Cir. 2006), and United States v. Hankton, 463
F.3d 626, 629 (7th Cir. 2006), but rejected in several
other decisions from this court, see United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006);
United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir.
2006); United States v. Cunningham, 429 F.3d 673, 676
(7th Cir. 2005). The Supreme Court has now answered
the question definitively, holding in Rita v. United States,
127 S. Ct. 2456, 2465 (2007), that the presumption of
reasonableness applicable when reviewing a within-
guidelines sentence on appeal does not carry over to the
choice of sentence by the district court. Ross, though,
was sentenced before Rita was decided, and before we
explicitly recognized that Rita resolved the apparent
tension in our own cases. See United States v. Wachowiak,
No. 06-1643, 2007 U.S. App. LEXIS 18234, *12-14 (7th Cir.
Aug. 1, 2007).
 Although the sentencing court’s language is ambiguous,
we are constrained to conclude that the court applied a
No. 07-1215                                                  5

presumption that Ross should be sentenced within the
guidelines range. We acknowledge that the court did
discuss several § 3553(a) factors when sentencing Ross,
including the “big for-sale quantities” of cocaine and
marijuana involved in his offense, his cooperation with the
government, his relationship with his family, and his
work history. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The
court also gave recognition to the legislative “regime
which punishes people very severely for dealing drugs,”
which was proper. See United States v. Miller, 450 F.3d
270, 275 (7th Cir. 2006) (prohibiting sentencing courts
from selecting sentence based on their belief that law is
misguided).
  But despite this apparent weighing of § 3553(a) factors,
the district court nevertheless told Ross that it could not
sentence him below the guidelines range unless he “pre-
sented some kind of good reason” to do so. Even while
expressing concern that a guidelines sentence was too
harsh in light of Ross’s familial situation and work
history, the court said that it must acquiesce to “Congress’
judgment” and sentenced Ross to the bottom of the guide-
lines range, which was, in the court’s opinion, the “lowest
sentence that’s possible.” The guidelines provide that a
defendant’s family ties and employment record “are not
ordinarily relevant,” U.S.S.G. §§ 5H1.5, 5H1.6, but con-
sideration of these characteristics is not strictly prohibited,
especially since Booker has increased a district court’s
discretion to fashion a sentence according to § 3553(a). See
United States v. Repking, 467 F.3d 1091, 1095 (7th Cir.
2006); United States v. Wallace, 458 F.3d 606, 608-09, 613
(7th Cir. 2006); United States v. Boscarino, 437 F.3d 634,
638 (7th Cir. 2006). The district court was wrong to
conclude that the “lowest sentence possible” was the
bottom of the guidelines range; if it legitimately concluded
that Ross’s personal characteristics warranted something
lower, it was free to sentence Ross below the guidelines
6                                            No. 07-1215

range. See 18 U.S.C. § 3553(a)(1). The court might have
meant to convey a different thought, but throughout the
sentencing hearing it suggested that a within-guidelines
sentence was presumptively appropriate and that Ross’s
arguments for leniency were just not sufficient to over-
come that presumption. On remand, the district court
may choose to re-impose the 78-month sentence, even
in light of the § 3553(a) factors—after all, there was a
significant amount of cocaine and marijuana involved in
this case. See United States v. Orozco-Vasquez, 469 F.3d
1101, 1109 (7th Cir. 2006) (affirming above-guidelines
sentence based on large quantity of drugs involved in
offense). But we must insure that the sentence is appro-
priate based on “the actual reasons given, not on whether
the sentence could have been supported by a different
rationale.” Wallace, 458 F.3d at 609.
  Accordingly, we VACATE the sentence and REMAND
for resentencing.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—9-11-07
