United States v. Alexander, Jovan ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 21, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Nos. 03-3051 & 03-3064
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Western District
of Wisconsin
v.
No. 03 CR 06
JOVAN ALEXANDER and
SHANNON HUGHES, John C. Shabaz,
Defendants-Appellants. Judge.
ORDER
After the Supreme Court instructed that the sentencing guidelines are to be
applied only in advisory fashion, United States v. Booker, 125 S. Ct. 738 (2005), we
ordered a limited remand to determine whether the district court would have
sentenced these appellants differently had it known that it was not bound by the
guidelines. See United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005). The
district judge has replied that in both cases he would have imposed identical
sentences even under advisory guidelines. We invited the parties to file arguments
concerning the reasonableness of the sentences. Having reviewed these responses,
we now affirm both sentences.
We recently held that a sentence within the applicable guideline range is
presumptively reasonable. United States v. Mykytiuk, No. 04-1196, 2005 WL
1592956, at *1 (7th Cir. July 7, 2005). An appellant can rebut the presumption by
Nos. 03-3051 & 03-3064 Page 2
demonstrating that his sentence is unreasonable when measured against the
factors set forth in § 3553(a). Id. at *2. Here, each appellant received a sentence
within the guideline range. Alexander received a sentence of 300 months—the
middle of the range of 262 to 327 months. And Hughes’s 327-month sentence is in
the middle of the calculated range of 292 to 365 months, or, as the parties
characterize it, at the top end of the range that would result from a one-level
“departure” for substantial assistance.
Each appellant argues that his sentence was unreasonable and asks us to
remand for resentencing, and the government in both cases urges us to affirm. We
conclude that neither appellant has presented an argument sufficient to rebut the
presumption of reasonableness. The district court gave due weight to the § 3553(a)
factors and found that in each case, the sentence imposed was appropriate to hold
the defendant accountable for the severity of his crime and to protect the
community from a substantial risk of recidivism. Accordingly, as to both
appellants, we AFFIRM the judgment of the district court.