No. 04-1196.

415 F.3d 606 (2005)

UNITED STATES of America, Plaintiff-Appellee, v. Robert MYKYTIUK, Defendant-Appellant.

United States Court of Appeals, Seventh Circuit.

Decided July 7, 2005.

Attorney(s) appearing for the Case

Robert A. Anderson, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

David A. Geier, Larowe, Gerlach & Roy, Madison, WI, for Defendant-Appellant.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

On January 14, 2004, Robert Mykytiuk was convicted of possessing pseudoephedrine with intent to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), and for possessing a firearm in furtherance of drug trafficking, see 18 U.S.C. § 924(c)(1)(A). Understandably treating the Sentencing Guidelines as mandatory, the district court enhanced Mykytiuk's sentence on the basis of facts found by a preponderance of the evidence, ultimately imposing a 150-month sentence. While we affirmed Mykytiuk's conviction on April 1, 2005, we concluded that the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), required one more step before we could rule on his sentence. Like many defendants, Mykytiuk did not raise a Booker-like objection to his sentence before the district court, and so the plain error standard of review applies at this point. Following the procedures outlined in United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005), we ordered a limited remand to the district court to see whether it was inclined to change the sentence now that it is clear that the Sentencing Guidelines are advisory only. See United States v. Mykytiuk, 402 F.3d 773 (7th Cir.2005). The district court has now informed us that it is not disposed to change the sentence. Under these circumstances, "we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker, 125 S.Ct. at 765." Paladino, 401 F.3d at 484. We asked the parties to address this final component of the Paladino plain error equation — the reasonableness of Mykytiuk's sentence — and now having received those responses, we find Mykytiuk's sentence reasonable.

We write here to explain briefly how we have reached that conclusion. The Sentencing Guidelines represent at this point eighteen years' worth of careful consideration of the proper sentence for federal offenses. When the Supreme Court directed the federal courts to continue using the Guidelines as a source of advice for proper sentences, it expected that many (perhaps most) sentences would continue to reflect the results obtained through an application of the Guidelines. But "many or most" sentences cannot mean "all" sentences. Put differently, Booker does not hold that a Guidelines sentence must conclusively be presumed to be reasonable. See United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005) (finding that a per se rule would "risk being invalidated as contrary to the Supreme Court's holding in Booker/Fanfan, because [that] would effectively re-institute mandatory adherence to the Guidelines."). This fact is reflected in our Paladino opinion, which reserved review of the reasonableness of even those sentences that fall within a properly calculated Guidelines range.

But while a per se or conclusively presumed reasonableness test would undo the Supreme Court's merits analysis in Booker, a clean slate that ignores the proper Guidelines range would be inconsistent with the remedial opinion. As Booker held, "the district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Booker, 125 S.Ct. at 767. The Guidelines remain an essential tool in creating a fair and uniform sentencing regime across the country. "The Sentencing Commission will continue to collect and study [district court] and appellate court decisionmaking. It will continue to modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices." Id. at 766. The best way to express the new balance, in our view, is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.

This is a deferential standard, as our many post-Booker orders already have reflected. See, e.g., United States v. Mitra, 2005 WL 1390278 (7th Cir.2005); United States v. Applewhite, 134 Fed.Appx. 94 (7th Cir.2005); United States v. Ohlinger, 134 Fed.Appx. 96 (7th Cir.2005). The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable when measured against the factors set forth in § 3553(a). See Booker, 125 S.Ct. at 766 (noting that the factors in § 3553(a) "will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable."). While we fully expect that it will be a rare Guidelines sentence that is unreasonable, the Court's charge that we measure each defendant's sentence against the factors set forth in § 3553(a) requires the door to be left open for this possibility.

In this case, the district court arrived at Mykytiuk's 150-month sentence through a proper application of the Guidelines. Earlier misconduct placed Mykytiuk in Criminal History Category II and, based on the circumstances of his drug and firearm possession, the district court properly lengthened Mykytiuk's sentence by a number of months. See U.S.S.G. § 2D1.1(b)(6)(B) (enabling an increase of three levels to a defendant's Base Offense Level if the manufacture of methamphetamine created a substantial risk of harm to human life). On the limited Paladino remand, the court considered the relevant factors in § 3553(a) and found that they did not necessitate a shortening of Mykytiuk's sentence. Since Mykytiuk has offered nothing to indicate that his sentence offends the § 3553(a) factors, he has failed to rebut the presumption that his Guidelines sentence is reasonable.

Because the district court would have imposed the same sentence post-Booker as it did pre-Booker and because that sentence is reasonable, Mykytiuk cannot meet the third plain error element; namely, that the changes wrought by Booker "affect[ed his] substantial rights." Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Accordingly, we find Mykytiuk's sentence was not the result of plain error, and we hereby AFFIRM that sentence.


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