United States v. Drakulich, Richard J ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 22, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-1606
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of Illinois.
Plaintiff-Appellee,
No. 02 CR 30061
v.
David R. Herndon,
RICHARD J. DRAKULICH, Judge.
Defendant-Appellant.
ORDER
Richard Drakulich appealed his sentence of 151 months' imprisonment and his
nearly $1.3 million restitution order for seven counts of mail fraud, four counts of
transporting funds obtained by fraud in interstate commerce, and one count of
securities fraud, contending that the district court plainly erred under United States v.
Booker, 543 U.S. 220 (2005). We ordered a limited remand to ask whether the district
court would have imposed the same sentence under an advisory regime. See United
States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). The district court replied that
it would. The parties were offered the opportunity to respond before we finally resolved
the appeal, and only the appellant has responded.
In Paladino we held that, if a district court responds to a limited remand with
a statement that it would reimpose the same sentence, “we will affirm the original
sentence against a plain-error challenge provided that the sentence is reasonable.” 401
F.3d at 484. Drakulich argues that his sentence is unreasonable because, he says, it is
“seven times longer than the national average for fraud.” But we will uphold a sentence
No. 04-1606 Page 2
as reasonable so long as the district court considered the guidelines and imposed a
sentence that is both within the statutory maximum and consistent with the sentencing
factors specified in 18 U.S.C. § 3553(a). See United States v. DeMaree, 459 F.3d 791 (7th
Cir. 2006).
After carefully considering each of the § 3553(a) factors, the district court
concluded that 151 months is an appropriate sentence given the scale of Drakulich’s
crime and the need to deter him and others from committing similar crimes in the
future. The court also considered the applicable imprisonment range under the 1995
guidelines—78 to 97 months—which were in effect at the time Drakulich committed his
crimes, and under the 2002 guidelines—121 to 151 months—which were in place at the
time of sentencing. Recognizing that the 2002 guidelines reflected the Sentencing
Commission’s belief that the offense level should be increased based on the number of
victims, but concerned that imposing a sentence based on the 2002 guidelines
calculation would pose an ex post facto problem, the district court “upwardly departed”
from the 1995 guidelines sentence to comport with the 2002 guidelines to reach its
sentence. But we have since held that the Ex Post Facto Clause does not apply to the
guidelines, DeMaree, 459 F.3d at 795, and thus from the start a sentence of 151 months
was within the properly calculated guidelines range. Therefore, Drakulich’s sentence
is reasonable because it falls within the appropriate guidelines range and the district
court gave detailed and meaningful consideration to the relevant factors under
§ 3553(a), which is all it was required to do. See United States v. Gama-Gonzalez, No.
06-1965, 2006 WL 3490843, *1 (7th Cir. Dec. 5, 2006); United States v. Laufle, 433 F.3d
981, 987 (7th Cir. 2006).
Accordingly, we AFFIRM the judgment of the district court.