# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Decided September 21, 2005

Before

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Nos. 03-2056 & 03-2171

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

ARTURO GARCIA PARRA and

MAGDALENA CORREA,

Defendants-Appellant s. Appeals from the United States

District Court for the

Western District of Wisconsin.

No. 02-CR-0092-C

Barbara B. Crabb

, Chief Judge.

O R D E R

On March 29, 2005, this court affirmed the convictions of Arturo Garcia Parra and Magdalena

Correa for conspiring to distribute and possess with intent to distribute in excess of 500 grams of

cocaine, and for the substantive offense of possessing with intent to distribute more than 500 grams

of cocaine. United States v. Parra, 402 F.3d 752 (7th Cir. 2005). In that opinion, we considered and

rejected various challe nges that both defendants made to the way in which the district court had

applied the federal Sentencing Guidelines when it determined what sentence was appropriate for each

one. See id. at 762-63 (Garcia Parra); 766-67 (Correa). Nonetheless, because the district court had

imposed Garcia Parra’s sentence of 63 months and Correa’s sentence of 121 months at a time when

all thought that the Guidelines were mandatory, we ordered a limited remand in accordance with our

decision in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), so that the district court could

advise us whether it was inclined to impose the same sentence or to resentence now that the Supreme UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53Nos. 03-2056 & 03-2171 Page 2

Court has held that the Guidelines may be applied only in an advisory fashion. See United States

v. Booker, 125 S.Ct. 738 (2005).

After obtaining the views of counsel, the district court issued an order on April 27, 2005, in

which it informed us that it “could state with confidence that [the court] would have imposed the

same sentences on both defendants at the time of their original sentencing had [it] known that the

sentencing guidelines are advisory and not binding.” On May 10, 2005, the court issued a second

order in which it deni ed defendant Correa’s motion for reconsideration. The latter order rejected

Correa’s argument that it would violate the Ex Post Facto clause of the United States Constitution,

Art. I, sec. 9, cl. 3, to impose any sentence calculated under the Guidelines that depends on facts

found by the judge.

Upon receiving the district court’s two orders, we invited the parties to file any arguments

concerning the appropriate disposition of the appeal in light of the district court’s decision. Correa

and the United States have done so; Garcia Parra has not. In her submission, Correa argues only that

the district court should have accepted her Ex Post Facto cla use point. This court, however, has

squarely rejected that argument. See, e.g., United States v. Paulus, No. 04-3092, 2005 WL 2000984

*4 (7th Cir. Aug. 22, 2005); United States v. Jamison, 416 F.3d 538 (7th Cir. 2005). As the court

pointed out in Jamison , the only material change here affected Correa’s punishment, not her guilt.

And with respect to the punishment, she was on notice at all times that distributing in excess of 500

grams of cocaine was punishable by a prison term of up to 40 years, as specified by 21 U.S.C.

§ 841(b)(1)(B)(ii). Booker did not forbid judicial fact-finding in conjunction with sentences; it held

only that such fact-finding could not be combined with a system of mandatory Guideline sentencing.

Thus, the district court was entitled to find the facts that increased Correa’s sentence from the 78

months that she concedes was appropriate to the 121 months she received.

Correa has not offered any other reason that would support a finding that her sentence was

unreasonable. Because both Garcia Parra’s sentence and Correa’s sentence fell within the applicable

Guidelines range, they are entitled to a rebuttable presumption of reasonableness. See United States

v. Mykytiuk

, 415 F.3d 606 (7th Cir. 2005). Because that presumption has not been rebutted here, we

can find no plain error in either sentence. We therefore A FFIRM the judgment of the district court.