United States v. Betro, Steve A.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005*
Decided May 9, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 04-3668
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin
v.
No. 04-CR-064-S-01
STEVE A. BETRO,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Police in Portage County, Wisconsin, executed a search warrant at Steve Betro’s
residence. The raid yielded methamphetamine, drug paraphernalia, and four
firearms. Betro pleaded guilty to possessing methamphetamine with intent to
distribute, 21 U.S.C. § 841(a)(1), and was sentenced to 78 months’ imprisonment.
Betro argues that his sentence is illegal in light of United States v. Booker, 125 S. Ct.
738 (2005). We affirm.
Betro’s sentencing hearing took place after the Supreme Court granted certiorari
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3668 Page 2
in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), but before the Court issued
its decision. The district court recognized the uncertainty surrounding the
sentencing guidelines and held:
[T]he guidelines are not severable and may not be constitutionally applied in
this case. Accordingly, the Court imposes a sentence consistent with the
provisions of 18 United States Code Section 3553(a) and uses the guidelines
calculated by the Probation Office using the November 2003 manual as
advisory and a reliable indicator in determining the appropriate sentence
within the statutory limit of the count of conviction.
The court said that “without using the guidelines except for perhaps a reliable
indicator” it found a range of 63 to 78 months to be “a just and reasonable sentence,”
and imposed a term at the top of that range. The 63- to 78-month range
corresponded with the guideline range recommended by the probation officer in the
presentence report.
Betro argues that the district court erred because the sentencing range produced
by the guideline calculations was based on several facts neither found by a jury nor
admitted by him. But the district court said that it was not basing its sentence on
the guideline range. Furthermore, Booker does not prevent a sentencing judge from
making factual findings that have the effect of increasing the guideline range so long
as the court understands that the range is advisory rather than binding. See United
States v. Della Rose, 403 F.3d 891, 907 (7th Cir. 2005). Here, the district court
explicitly treated the guideline range as advisory, and Betro does not argue that the
court erred in calculating that range.
Betro does not specifically argue that the sentence imposed by the district court is
unreasonable, see Booker, 125 S. Ct. at 765, but even if he had, we would find the
sentence reasonable. The district court imposed a sentence within the guideline
range, and also properly referenced several of the factors in 18 U.S.C.
§ 3553(a)—Betro’s danger to the community, his significant risk of recidivism, his
extensive criminal history, and the need to deter him and others from criminal
activity—in determining that 78 months was the appropriate sentence. See United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).
AFFIRMED
.