              United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                           June 27, 2008

                                               Before

                               Hon. FRANK H. EASTERBROOK, Chief Judge

                               Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                               Hon. DIANE S. SYKES, Circuit Judge

Nos. 06-2678 & 06-2893

                                                        Appeals from the United States District
UNITED STATES OF AMERICA,                               Court for the Northern District
                  Plaintiff-Appellee,                   of Illinois, Eastern Division.

       v.                                               No. 05 CR 81

CHRISTOPHER MILLET,                                     James B. Moran,
               Defendant-Appellant.                     Judge.


                                            ORDER

       On consideration of the petition for rehearing filed by Plaintiff-Appellant on January 24,
2008, the members of the original panel have voted to amend the opinion issued December 14,
2007 as follows and to deny the petition for rehearing in all other respects.

        On page 20 of the slip opinion, line 13, the sentence, “The district court satisfied each of
these requirements” is deleted.

       On page 20, line 20, the word “rightly” is deleted.

       On page 20, the words “an offense level of thirty and a criminal history category of” are
deleted.

       On page 21, after the conclusion of the only paragraph on the page, the following two
paragraphs are inserted:

               We close this discussion with one observation. The district court concluded that
       Millet’s physical and mental impairments, as well as his familial circumstances, did not
       warrant a departure under the Guidelines. It is true that the Guidelines suggest that these
Nos. 06-2678 & 06-2893                                                                       Page 2


       considerations are not ordinarily relevant. See U.S.S.G. §§ 5H1.3, 5K2.13 (mental
       conditions not ordinarily relevant in determining whether departure warranted unless
       defendant suffered from “significantly reduced mental capacity”); U.S.S.G. § 5H1.4
       (physical condition not ordinarily relevant unless “extraordinary” physical impairment);
       U.S.S.G. § 5H1.6 (family ties and responsibilities not ordinarily relevant). A district
       court may consider these circumstances, however, when it exercises its discretion in
       imposing a sentence in accordance with § 3553(a). See United States v. Ross, 501 F.3d
       851, 854 (7th Cir. 2007) (stating that although guidelines provide that a defendant’s
       family ties and employment record are not ordinarily relevant, consideration of these
       characteristics is not strictly prohibited); United States v. Long, 425 F.3d 482, 488 (7th
       Cir. 2005) (“Freed from the mandatory nature of [the Guidelines], the court will be free
       to consider the factors outlined in 18 U.S.C. § 3553(a), including those that were
       specifically prohibited by the guidelines and those that are not constitutionally prohibited
       such as race or sex.”); see also Kimbrough v. United States, 128 S. Ct. 558, 576 (2007)
       (“We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are
       advisory only, and that the Court of Appeals erred in holding the crack/powder disparity
       effectively mandatory.”); United States v. Carter, No. 06-2412, 2008 WL 2466662, at
       *12 (7th Cir. June 19, 2008).

                  In this case, it is unclear whether the district court believed
       it had the authority to consider Millet’s physical impairments, mental impairments, and
       familial circumstances when determining the sentence it thought appropriate under §
       3553(a). After these considerations had been raised, the district court responded: “But
       under the Guidelines, I don’t see how I can use those as a basis for a downward departure
       . . . . I got to do what the guidelines tell me.” These comments suggest the district court
       may not have believed it could consider these factors. As we will discuss next, this case
       will be remanded for the district court to make a determination of drug quantity. On
       remand, the district court should also consider whether it would sentence Millet
       differently knowing that it could consider Millet’s physical impairments, mental
       impairments, and familial circumstances. If so, it should resentence him accordingly.

No member of the court in regular active service has called for a vote on the petition for hearing
en banc.* Therefore, other than as provided for in this order, the petition for rehearing is denied.




*Circuit Judge Flaum took no part in the consideration of this petition for rehearing.
