United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 22, 2005

Decided December 21, 2005

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

Nos. 04-2205, 04-2217

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT SEELEY and EDUARDO

RUIZ-HERNANDEZ,

Defendants-Appellants.

Appeals from the United States

 District Court for the

 Western District of Wisconsin.

No. 03-CR-150-S-02

John C. Shabaz, Judge.

O R D E R

Robert Seeley and Eduardo Ruiz-Hernandez pleaded guilty to conspiring to

distribute and possess with intent to distribute 500 grams or more of cocaine in

violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. In April 2004, the district court

sentenced Seeley to 105 months’ imprisonment, near the top of the applicable

Sentencing Guidelines range (87 to 108 months), and Ruiz-Hernandez to 109 months’

imprisonment, in the middle of the relevant range (97 to 121 months). Through an

order dated September 7, 2005, we rejected Seeley’s challenge to the district court’s

application of § 2D1.1(b)(1) of the Guidelines, which calls for a two-level increase to a

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
Nos. 04-2205 & 04-2217 Page 2

sentence “[i]f a dangerous weapon (including a firearm) was possessed.” In addition,

however, we ordered a limited remand in both Seeley and Ruiz-Hernandez’s cases so

that the district court could inform us whether it considered their sentences to be

appropriate, given that the Guidelines are no longer mandatory. See United States v.

Booker, 125 S. Ct. 738 (2005); United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).

As this court held in Paladino, if the district court indicates that it would impose the

same sentence, that sentence will be affirmed against a plain-error challenge so long

as it is reasonable. 401 F.3d at 484. If a sentence is within the properly calculated

Guidelines range, it is presumptively reasonable. See United States v. Mykytiuk, 415

F.3d 606, 608 (7th Cir. 2005). A defendant can rebut this presumption only by demonstrating

that her sentence is unreasonable when measured against the factors set forth in 18 U.S.C. §

3553(a). Id.

The district court has informed us that it would impose the same sentences on

both Seeley and Ruiz-Hernandez under the advisory Guidelines. The court considered

Seeley’s argument that his close relationship with his parents, fiancée and young

daughter, his lack of a significant criminal history, and his drug addiction supported

a lower sentence, but concluded that “[t]hese factors are counterbalanced by

defendant’s lengthy participation in a conspiracy to distribute a significant amount of

cocaine and marijuana, the fact that his relevant conduct involved a drug amount near

the top of the drug quantity range of 3.5 to 5 kilograms of cocaine and his reported

threats to a government witness while on pretrial release.” The court also rejected

Seeley’s contention that the length of his sentence was unduly long in comparison to

his co-defendants, explaining that “[g]iven the defendants’ participation in the

conspiracy and his possession of a firearm to protect his drug trafficking . . . there is

no unwarranted sentencing disparity between his sentence of 105 months and the

sentences of his co-defendants.” As to Ruiz-Hernandez, the district court stated, after

considering arguments related to his youth, lack of serious criminal history, and

relatively short involvement in the conspiracy, that “[these factors] are

counterbalanced by defendant’s awareness of the entire scope of the conspiracy, his six

month participation in the ongoing conspiracy and his illegal entry into the United

States.”

After receiving the district court’s statement, we invited the government and

both Seeley and Ruiz-Hernandez to file any arguments concerning the ultimate

disposition of this appeal; the government and Seeley responded, but Ruiz-Hernandez

did not. Seeley challenges his sentence as unreasonable on grounds similar to those he

presented to the district court, arguing that given his limited criminal history and

extensive family connections “[n]othing in [his] background suggests that he is a risk

to reoffend,” and that his sentence is excessive in comparison to those received by his

co-defendants. The government argues that the district court adequately considered

and rejected both arguments.
Nos. 04-2205 & 04-2217 Page 3

Our review of the reasonableness of a district court’s sentencing determination

within an applicable Guidelines range is deferential. See Mykytiuk, 415 F.3d at 608

(commenting that “it will be a rare Guidelines sentence that is unreasonable”). Perhaps

the district court could have concluded, after considering Seeley’s individual

circumstances and the sentences of his co-defendants, that a lower sentence was

warranted. We cannot say, however, that the court’s contrary conclusion was

unreasonable. The district court was entitled to conclude on the basis of these facts, for

example, that Seeley’s drug use was not a mitigating factor, but instead was a reason

to impose a longer sentence that would “protect the community and provide the

defendant with adequate time to participate in substance abuse treatment.” Similarly,

although Seeley’s sentence was comparable to those of co-defendants who possessed

larger drug quantities, Seeley alone was found to have possessed a firearm, an

enhancement factor that reasonably led the district court to conclude that there was

no unwarranted sentencing disparity.

As for Ruiz-Hernandez, he has not presented any arguments based on § 3553(a)

and thus has failed to rebut the presumption of reasonableness that attaches to his

sentence, which falls within the applicable Guidelines range. We therefore find his

sentence reasonable. 

Accordingly, we AFFIRM the judgment of the district court.