# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 16, 2005

Decided November 16, 2005

Before

Hon. Frank H. Easterbrook, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Diane S. Sykes, Circuit Judge

No. 04-1388

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

ARIC R. BOTHUN,

Defendant-Appellant

. Appeal from the United States District

Court for the Western District

of Wisconsin

No. 03-CR-83-C-01

Barbara B. Crabb,

Chief Judge

.

O R D E R

We previously ordered a limited remand to allow the district court to inform us

whether it considered Aric R. Bothun’s sentence to be appropriate, given that the

Sentencing Guidelines are no longer mandatory. See United States v. Booker

, 125 S.

Ct. 738 (2005); Un ited States v. Paladino , 401 F.3d 471 (7th Cir. 2005). The district

court has responded that it would impose the same sentence under the advisory

Guidelines. We invited both parties to file any arguments concerning the disposition

of this case in light of the district court’s decision. Bo thun contends that the district

court erred in its Guidelines calculation and that the use of Booker to determine his UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-1388 Page 2

sentence violates ex post facto principles. The government argues that the district

court’s decision to impose the same sentence is reasonable.

Bothun pleaded guilty to one count of attempting to possess with the intent to

deliver 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 . At

sentencing, the district court found that Bothun was responsible for possessing with

intent to distribute at least 3,000 but not more than 10,000 kilograms of marijuana

equivalent, dict ating an offense level of 34. The court then imposed a two-level

enhancement under § 2D1.1(b)(1) for possession of a weapon in connection with a drug

crime. After determining that the applicable Criminal History Category was III, the

district court arrived at a Guidelines range of 235 to 293 months and sentenced

Bothun to the bottom of this range.

On direct appeal, Bothun challenged only two aspects of the district court’s

Guidelines calculation: the court’s application of the weapons enhancement a nd the

court’s refusal to grant a reduction for acceptance of responsibility under § 3E1.1. We

rejected both arguments, stating that “we have found no error in the [district] court’s

application of the Guidelines....” United States v. Bothun

, 424 F.3d 582, 587 (7th Cir.

2005). Nevertheless, on limited remand Bothun raised an additional challenge to his

Guidelines calculation, that the district court failed to “consider that much of the

m ethamphetamine in this case was for personal use, not distribution.” Bothun now complains that the district court’s failure to adjust his sentence downward based on this argument renders his sentence unreasonable.

The sole purpose of our limited remand in this case was to determine whether

the defendant’s sentence was plainly erroneous in light of Booker . See Paladino , 401

F.3d 483-84. Bothun therefore was not entitled to raise a new argument unrelated to

Booker that he forfeited at sentencing and failed to raise on appeal. Bothun’s second

argument, that his sentencing under B ooker violates ex post facto principles , is

similarly unavailing. As Bothun recognizes, we have previously considered and

rejected this precise claim. See United States v. Paulus

, 419 F.3d 693 (7th Cir. 2005).

A sentence within the properly calculated Guidelines range is presumptively

reasonable and an appellant “can rebut this presumption only by demonstrating that

his or her sentence is unreasonable when measured against the factors set forth in [18

U.S.C.] § 3553(a). United States v. Mykytiuk

, 415 F.3d 606, 608 (7th Cir. 2005)

. As we

stated in our earlier decision in this case, the district court properly calcu lated the

Guidelines rang

e. Bothun has not presented any arguments based on § 3553(a) and

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

sentence. We therefore find that the sentence is reasonable.No. 04-1388 Page 3

Accordingly, we A FFIRM the judgment of the district court.