United States v. Ngo, Tek

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 13, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2662
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No.03-CR-110-C
TEK NGO,
Defendant-Appellant Barbara B. Crabb,
Chief Judge
ORDER
After the Supreme Court held that the sentencing guidelines are to be
applied only in an 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 Ngo 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
replied that she would have imposed an identical sentence even under advisory
guidelines. We invited the parties to file arguments concerning the reasonableness
of Ngo’s sentence, and after considering both responses, we affirm.
The district court, after determining that Ngo is a career offender, imposed a
sentence of 210 months—the low end of the range of 210 to 240 months. Ngo makes
no argument as to why this sentence might be unreasonable. Instead he argues
No. 04-2662 Page 2
that the “only appropriate remedy for the Booker violation in this case is a remand
for resentencing” and that the sentencing error was plain “regardless of the district
court’s speculation as to what it might have done.” In short, he challenges the
procedure outlined by Paladino. But he has not rebutted the presumption of
reasonableness that applies to a sentence within the properly calculated guideline
range. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
The district court acknowledged, in accordance with our May 3 opinion, that
whether Ngo should be considered a career offender under the guidelines is a close
question in light of the relatedness of the predicate crimes. Upon reconsideration
the district judge has decided that it was indeed appropriate to sentence Ngo as a
career offender. We cannot say that its conclusion is unreasonable given the
advisory nature of the guidelines and, more importantly, Ngo’s failure to offer any
argument on the subject. The district court considered the factors set forth in 18
U.S.C. § 3553(a) and found that the sentence imposed was appropriate in light of
the interests in holding Ngo accountable for the severity of his crimes and
protecting the community from further criminal conduct. We therefore AFFIRM
the judgment of the district court.