United States v. Andrlik, Michael

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 15, 2006
Decided March 10, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4333
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 04-CR-120-S-01
MICHAEL A. ANDRLIK, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Michael Andrlik pleaded guilty to distributing cocaine, 21 U.S.C. § 841(a)(1).
Applying the Guidelines as advisory, the district court sentenced him to 57 months’
imprisonment, the top of the applicable range of 46 to 57 months. On appeal,
Andrlik contends that our decision in United States v. Mykytiuk, 415 F.3d 606 (7th
Cir. 2005), contradicts our decision in United States v. Dean, 414 F.3d 731 (7th Cir.
2005), creating an intra-circuit conflict. He further argues that our decision in
Mykytiuk is inconsistent with the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005). Finally, Andrlik challenges his sentence as
unreasonable because, he contends, it is greater than necessary to satisfy the
factors in 18 U.S.C. § 3553(a). We affirm.
No. 04-4333 Page 2
I.
In 2004, a grand jury indicted Andrlik on seven counts of distributing
cocaine. Andrlik pleaded guilty to count seven of the indictment pursuant to a
written plea agreement. The PSR prepared prior to sentencing concluded that
Andrlik’s total offense level was 23. Andrlik had a criminal history category of one;
the resulting Guidelines imprisonment range was 46 to 57 months. On appeal,
Andrlik concedes that the range was properly calculated.
Sentencing took place after our decision in Booker but before the Supreme
Court affirmed that decision. At the sentencing hearing, the district court accepted
the Guidelines calculation in the PSR, but held that the Guidelines could not be
applied constitutionally in Andrlik’s case because he had not admitted, nor had a
jury found beyond a reasonable doubt, the facts underlying certain upward
adjustments. The court then applied the criteria listed in 18 U.S.C. § 3553(a) and
sentenced Andrlik to 57 months’ imprisonment, three years’ supervised release and
a $100 special assessment. Alternatively, the court imposed the same sentence
under a mandatory guideline regime.
II.
We review a sentence imposed by the district court for reasonableness based
on the factors set forth in 18 U.S.C. § 3553(a). United States v. Jordan, 435 F.3d
693, 696 (7th Cir. 2006); United States v. Laufle, 433 F.3d 981, 984-85 (7th Cir.
2006). Review is extremely deferential. United States v. Lopez, 430 F.3d 854, 856-
57 (7th Cir. 2005). We will not vacate a sentence just because we might have
imposed a different sentence, Laufle, 433 F.3d at 988; United States v. Williams,
425 F.3d 478, 481 (7th Cir. 2005), and a sentence within a properly calculated
Guidelines range is presumed to be reasonable. United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005).
Andrlik first argues that his sentence is not entitled to a presumption of
reasonableness, even though it falls within the properly calculated Guidelines
range, because, according to him, our decision in Dean rejected that proposition and
thus created an intra-circuit conflict with Mykytiuk. But Andrlik misreads Dean.
Although Dean stresses the discretionary nature of imposing a Guidelines sentence,
it recognizes the reason such a sentence will almost always be reasonable: “the
guidelines are promulgated and continually revised by an agency staffed by
experts.” Dean, 414 F.3d at 730 (citing United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005)). Instead of conflicting with Mykytiuk, Dean explains it.
Andrlik next argues that the presumption of reasonableness called for in
Mykytiuk and Dean essentially makes the Guidelines mandatory, contrary to the
No. 04-4333 Page 3
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Andrlik
again misreads our decision. Mykytiuk and subsequent cases recognize the advisory
nature of the Guidelines. 415 F.3d at 608 (“[W]hile a per se or conclusively
presumed reasonableness test would undo the Supreme Court’s merits analysis in
Booker, a clean slate that ignores the proper Guidelines range would be inconsistent
with the remedial opinion.”). See also Laufle, 433 F.3d at 984-85; United States v.
Cunningham, 429 F.3d 673, 675-76 (7th Cir. 2005); United States v. George, 403
F.3d 470, 472-73 (7th Cir. 2005). Mykytiuk does not mandate that all sentences
within a properly calculated Guidelines range are reasonable per se. 415 F.3d at
608. A defendant may rebut the presumption by demonstrating that a sentence
within the Guidelines range is unreasonable in light of the factors identified in
§ 3553(a). United States v. Brock, 433 F.3d 931, 938 (7th Cir. 2006); United States
v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir. 2005); Williams, 425 F.3d at
480; Mykytiuk, 415 F.3d at 608.
Andrlik next argues that, even if his sentence is presumptively reasonable
under Mykytiuk, he can rebut the presumption because the sentence is longer than
necessary to fulfill the requirements of 18 U.S.C. § 3553(a). He focuses specifically
on his age and its negative correlation to the likelihood of his recidivism. He also
contends that the sentence is unreasonable because it is 28.5 times longer than any
sentence he has previously received.
Andrlik’s argument assumes de novo review. He apparently believes that we
may balance the § 3553(a) factors ourselves and disagree with the district court’s
determination of that balance. As explained above, he is wrong. The issue is not
whether another sentence would also be reasonable, rather the issue is whether the
sentence imposed by the district court is reasonable. Lopez, 430 F.3d at 857.
Andrlik’s counsel argued to the district court that a 36-month sentence would fulfill
the goals of § 3553(a), but the court rejected that argument. We cannot, as Andrlik
asks, instruct the district court to lower his sentence because another sentence may
also be reasonable. See United States v. Newsom, 428 F.3d 685, 686-87 (7th Cir.
2005).
Neither of the cases brought to our attention by Andrlik after argument
alters our analysis. Accordingly, we AFFIRM Andrlik’s sentence.