415 F.3d 606 (7th Cir. 2005), 04-1196, United States v. Mykytiuk

Docket Nº:04-1196.
Citation:415 F.3d 606
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert MYKYTIUK, Defendant-Appellant.
Case Date:July 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 606

415 F.3d 606 (7th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Robert MYKYTIUK, Defendant-Appellant.

No. 04-1196.

United States Court of Appeals, Seventh Circuit.

July 7, 2005

        Submitted May 31, 2005.

Page 607

        Robert A. Anderson, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

        David A. Geier, Larowe, Gerlach & Roy, Madison, WI, for Defendant-Appellant.

        Before POSNER, ROVNER, and WOOD, Circuit Judges.

        WOOD, Circuit Judge.

        On January 14, 2004, Robert Mykytiuk was convicted of possessing pseudoephedrine with intent to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), and for possessing a firearm in furtherance of drug trafficking, see 18 U.S.C. § 924(c)(1)(A). Understandably treating the Sentencing Guidelines as mandatory, the district court enhanced Mykytiuk's sentence on the basis of facts found by a preponderance of the evidence, ultimately imposing a 150-month sentence. While we affirmed Mykytiuk's conviction on April 1, 2005, we concluded that the Supreme Court's decision in United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), required one more step before we could rule on his sentence. Like many defendants, Mykytiuk did not raise a Booker-like objection to his sentence before the district court, and so the plain error standard of review applies at this point. Following the procedures outlined in United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005), we ordered a limited remand to the district court to see whether it was inclined to change the sentence now that it is clear that the Sentencing Guidelines are advisory only. See United States v. Mykytiuk, 402 F.3d 773 (7th Cir.2005). The district court has now informed us that it is not disposed to change the sentence. Under these circumstances, "we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker, 125 S.Ct. at 765." Paladino, 401 F.3d at 484. We asked the parties to address this final component of the Paladino plain error equation--the reasonableness of Mykytiuk's sentence--and now having received those responses, we find Mykytiuk's sentence reasonable.

        We write here to explain briefly how we have reached that conclusion. The Sentencing Guidelines represent at this point eighteen years' worth of careful...

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