United States v. Bothun, Aric R. , 156 F. App'x 827 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 16, 2005
Decided November 16, 2005
Before
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
Hon. Diane S. Sykes, Circuit Judge
No. 04-1388
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District
of Wisconsin
v.
No. 03-CR-83-C-01
ARIC R. BOTHUN,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
We previously ordered a limited remand to allow the district court to inform us
whether it considered Aric R. Bothun’s sentence to be appropriate, given that the
Sentencing Guidelines are no longer mandatory. See United States v. Booker, 125 S.
Ct. 738 (2005); United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district
court has responded that it would impose the same sentence under the advisory
Guidelines. We invited both parties to file any arguments concerning the disposition
of this case in light of the district court’s decision. Bothun contends that the district
court erred in its Guidelines calculation and that the use of Booker to determine his
No. 04-1388 Page 2
sentence violates ex post facto principles. The government argues that the district
court’s decision to impose the same sentence is reasonable.
Bothun pleaded guilty to one count of attempting to possess with the intent to
deliver 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846. At
sentencing, the district court found that Bothun was responsible for possessing with
intent to distribute at least 3,000 but not more than 10,000 kilograms of marijuana
equivalent, dictating an offense level of 34. The court then imposed a two-level
enhancement under § 2D1.1(b)(1) for possession of a weapon in connection with a drug
crime. After determining that the applicable Criminal History Category was III, the
district court arrived at a Guidelines range of 235 to 293 months and sentenced
Bothun to the bottom of this range.
On direct appeal, Bothun challenged only two aspects of the district court’s
Guidelines calculation: the court’s application of the weapons enhancement and the
court’s refusal to grant a reduction for acceptance of responsibility under § 3E1.1. We
rejected both arguments, stating that “we have found no error in the [district] court’s
application of the Guidelines....” United States v. Bothun, 424 F.3d 582, 587 (7th Cir.
2005). Nevertheless, on limited remand Bothun raised an additional challenge to his
Guidelines calculation, that the district court failed to “consider that much of the
methamphetamine in this case was for personal use, not distribution.” Bothun now
complains that the district court’s failure to adjust his sentence downward based on
this argument renders his sentence unreasonable.
The sole purpose of our limited remand in this case was to determine whether
the defendant’s sentence was plainly erroneous in light of Booker. See Paladino, 401
F.3d 483-84. Bothun therefore was not entitled to raise a new argument unrelated to
Booker that he forfeited at sentencing and failed to raise on appeal. Bothun’s second
argument, that his sentencing under Booker violates ex post facto principles, is
similarly unavailing. As Bothun recognizes, we have previously considered and
rejected this precise claim. See United States v. Paulus, 419 F.3d 693 (7th Cir. 2005).
A sentence within the properly calculated Guidelines range is presumptively
reasonable and an appellant “can rebut this presumption only by demonstrating that
his or her sentence is unreasonable when measured against the factors set forth in [18
U.S.C.] § 3553(a). United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). As we
stated in our earlier decision in this case, the district court properly calculated the
Guidelines range. Bothun has not presented any arguments based on § 3553(a) and
thus has failed to rebut the presumption of reasonableness that attaches to his
sentence. We therefore find that the sentence is reasonable.
No. 04-1388 Page 3
Accordingly, we AFFIRM the judgment of the district court.