United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 22, 2007

Decided June 19, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 06-4102

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THEODORE M. CAVETT,

Defendant-Appellant.

Appeal from the United States

District Court for the 

Western District of Wisconsin.

No. 06 CR 108

Barbara B. Crabb, 

Chief Judge.

O R D E R

Theodore Cavett was charged, along with two codefendants, with four counts

of distributing crack in violation of 21 U.S.C. § 841(a)(1). Cavett pleaded guilty to

count four, which charged him with distributing 50 or more grams. Prior to

sentencing, the government filed a substantial assistance motion under

U.S.S.G. § 5K1.1 to reduce Cavett’s advisory guidelines imprisonment range based

on Cavett’s early cooperation and partial role in convincing a codefendant to turn

himself in to authorities. The district court denied this motion, stating “I am not

persuaded that your assistance is sufficient to warrant a downward departure,

although it does warrant giving you a sentence at the lower end of the Guideline

range.” The district court proceeded to sentence Cavett to 272 months’

imprisonment (which did in fact fall on the low end of the advisory guidelines

NONPRECEDENTIAL

DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 06-4102 Page 2

1

 Post-Booker, we do not review the propriety of the district court’s denial of the

government’s motion for a downward departure but, rather, consider whether the

overall sentence imposed is reasonable. United States v. Laufle, 433 F.3d 981, 987 (7th

Cir. 2006). 

range). 

Cavett appeals his sentence, alleging the district court improperly considered

the factors set forth in 18 U.S.C. § 3553(a) and challenging the district court’s

denial of the government’s substantial assistance motion.1

 Cavett also argues that

any presumption of reasonableness is inconsistent with United States v. Booker,

543 U.S. 220 (2005). 

Because Cavett’s sentence falls within a properly calculated guidelines range,

it is presumed reasonable under United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). We are mindful that the Supreme Court will soon decide whether it is

consistent with Booker to afford a presumption of reasonableness to a sentence

within the guidelines range. See United States v. Rita, 177 F. App’x 357 (4th Cir.

2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754). The resolution

of that question, however, would not affect our conclusion that Cavett’s sentence is

reasonable (and that any challenge to his sentence would be frivolous). 

After giving due consideration to the arguments made by government and

defense counsel, United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005),

the district court consulted the relevant § 3553(a) factors and identified those

having a significant effect on its choice of sentence. United States v. Nitch, 477 F.3d

933, 937 (7th Cir. 2007); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). 

Specifically, the court noted that Cavett had “a very difficult childhood,”

experienced “some horrible losses in . . . life,” and had difficulties finding

employment. 18 U.S.C. § 3553(a)(1). However, after the court considered that

Cavett had engaged in criminal conduct for more than fifteen years, had a history of

violent crime, and is a gang member and a chronic drug user, id., it concluded that

a sentence of 272 months was necessary to “protect the community from . . . [his]

violent criminal conduct” and to reflect the seriousness of the conduct. Based on the

district court’s consideration of the § 3553(a) factors, and regardless of any

presumption, we are unable to say that Cavett’s 272-month sentence is

unreasonable. Dean, 414 F.3d at 729.

Accordingly, we AFFIRM the sentence entered by the district court.