                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1843
                                   ___________

United States,                         *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Juda B. Aguilera,                      *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: December 12, 2007
                                Filed: April 24, 2008
                                 ___________

Before BYE, ARNOLD, and MELLOY, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Juda B. Aguilera appeals the 135 month sentence the district court imposed
following his guilty plea to conspiring to distribute methamphetamine and aiding and
abetting the distribution of methamphetamine. We vacate Aguilera's sentence and
remand for resentencing.
                                            I

       Aguilera pleaded guilty to conspiring to distribute methamphetamine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and aiding and abetting the distribution
of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The
presentence investigation report (PSR) calculated a Guidelines range of 135-168
months, based on an offense level of 31 and a criminal history category of III.

       At sentencing, Aguilera requested a sentence below the Guidelines range
claiming: (1) his criminal history category overstated his prior criminal conduct and
(2) the sentencing range failed to reflect his cooperation because it did not rise to the
level of substantial assistance. The government objected, noting the Guidelines are
presumptively reasonable and maintaining he had failed to rebut this presumption.
After acknowledging this Circuit's mandate about a presumption of reasonableness
applying to the Guidelines range, the district court concluded "[g]iven the crime and
the propensities shown by [Aguilera's] participation" 135 months imprisonment was
not "an unreasonable sentence." Sentencing Transcript at 7-8.

      On appeal Aguilera argues the district court's sentence determination was
unreasonable.

                                           II

       This court reviews a district court's sentence determination under an abuse of
discretion standard. The United States Supreme Court recently clarified the scope of
our review:

      [T]he appellate court . . . must first ensure that the district court
      committed no significant procedural error, such as failing to calculate (or
      improperly calculating) the Guidelines range, treating the Guidelines as
      mandatory, failing to consider the § 3553(a) factors, selecting a sentence

                                          -2-
      based on clearly erroneous facts, or failing to adequately explain the
      chosen sentence--including an explanation for any deviation from the
      Guidelines range. Assuming that the district court's sentencing decision
      is procedurally sound, the appellate court should then consider the
      substantive reasonableness of the sentence imposed under an
      abuse-of-discretion standard.

Gall v. United States, 128 S. Ct. 586, 597 (2007). See also Koon v. United States,
518 U.S. 81, 100 (1996) ("The abuse-of-discretion standard includes review to
determine that the discretion was not guided by erroneous legal conclusions.").

                                           III

       As the Supreme Court made clear in Rita v. United States, 127 S. Ct. 2456
(2007), the presumption of reasonableness is an appellate presumption and "the
sentencing court does not enjoy the benefit of a legal presumption that the Guidelines
sentence should apply." Id. at 2465. See also United States v. Wilms, 495 F.3d 277,
282 (6th Cir. 2007) (vacating and remanding defendant's sentence due to the district
court's imposition of a presumption of reasonableness in violation of Rita); United
States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) ("[A] district court's job is
not to impose a 'reasonable' sentence. Rather, a district court's mandate is to impose
'a sentence sufficient, but not greater than necessary, to comply with the purposes' of
section 3553(a)(2). Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.").

       The record in this case demonstrates the district court applied a presumption of
reasonableness to the Guidelines. After acknowledging Eighth Circuit precedent
mandated application of a presumption of reasonableness to the Guidelines, the
district court imposed on Aguilera a within Guidelines sentence of 135 months. The
district court did not explain the basis for the sentence except to say: "Given the crime
and the propensities shown by [Aguilera’s] participation, I don't think that's an


                                          -3-
unreasonable sentence." Sentencing Transcript at 7-8. The record leaves little doubt
the district court viewed the guidelines range as presumptively correct, as a
"super-factor" that Aguilera had to overcome. In light of Rita, this was plainly an
error of law, rendering Aguilera's sentence unreasonable. See Koon, 518 U.S. at 100
("A district court by definition abuses its discretion when it makes an error of law.").

                                           IV

       Because we find the district court erred in applying a presumption of
reasonableness to the guidelines range, it is unecessary to address Aguilera's
additional contention that the district court failed to consider the factors set forth in
18 U.S.C. § 3553(a) when formulating his sentence. We note, however, on remand
the district court "shall consider" the factors listed in § 3553(a) and, based on those
considerations and the proper guidelines range, impose a sentence which is "sufficient,
but not greater than necessary," to satisfy the purposes of sentencing set forth in §
3553(a)(2).

                                           V

      Accordingly, we vacate Aguilera's sentence and remand for resentencing
consistent with this opinion.
                        ______________________________




                                          -4-
