# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

July 11, 2005

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 04-1031, 04-1032 & 04-1033

United States of America,

Plaintiff-Appellee

,

v.

Richard D. Simmers and
Ryan K. Jones,

Defendants-Appellants

. Appeals from the United States

District Court for the Western District

of Wisconsin

Nos. 03-CR-98-S-02, 03-CR-98-S-03

& 03-CR-133-S-01

John C. Shabaz, Judge

.

O R D E R

After concluding that the defendants’ convictions should be affirmed, we ordered

a limited remand so that the district court could determine whether their sentences

re main appropriate now that U nited States v. Booker

, 125 S. Ct. 738 (2005), has relegated the United States Sentencing Guidelines to advisory status. S ee Uni ted

States v. Paladino

, 401 F.3d 471 (7th Cir. 2005).

The district court judge has replied that for both defendants, he would impose

the same sentence today knowing that the Guidelines are not mandatory. On June 3,

2005, we invited the parties to file, within seven days, any arguments concerning the

appropriate disposition of the appeal in light of the district court’s decision. That time

has now passed. Mr. Simmers has not filed a brief. Mr. Jones has filed a brief, in

which he primarily argues that he is unrepresented by counsel and should not be compelled to proceed without counsel. The United States, in its brief, argues that the UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53Nos. 04-1031, 04-1032 & 04-1033 Page 2

district court, for both defendants, properly considered 18 U.S.C. § 3553, explained its

reasons for its sentence in various orders, and rendered a reasonable sentence.

In Mr. Simmers’s case, the Guidelines sentencing range applicable here is 110

to 137 months, and Mr. Simmers’s 120 month sentence is toward the middle of these

Guidelines. The district court judge explained his belief that this sentence was required to address the seriousness of the offenses, to provide adequate deterrence to criminal conduct, to protect the public, and to provide Mr. Simmers with educational

training, medical care, and other correctional treatment. Thus, we see no reason why

such a sentence should be deemed “unreasonable.”

Mr. Jones argues that he is unrepresented by counsel, because of the withdrawal

of his prior attorney. While it is true that Mr. Jones’s counsel did in fact withdraw

from the case, on May 26, 2004 we issued an order ordering Mr. Jones to file a

statement advising us whether he wanted to proceed on appeal with court-appointed

counsel. Mr. Jones failed to respond to this order by our June 7, 2004 deadline, and on

June 28, 2004, we issued a show-cause order to Mr. Jones for his failure to respond to

our earlier order. On July 12, 2004, Mr. Jones filed a response, in which he notified us

that he would “proceed ‘pro se ’ with this appeal.” Mr. Jones also noted that “[he] does

not request this court to appoint him counsel of any kind.” After notifying us that he

would proceed pro se

, Mr. Jones then filed several briefs and motions pro se

, including his Appellant’s Brief, several motions for extensions of time to respond to the United

States, his Reply Brief, a motion to supplement his appeal, and a motion to strike the supplemental appeal of the United States. For the majority of this appeal, Mr. Jones

has served a s his own counsel. Therefore, Mr. Jones’s argument that he is now unconstitutionally without counsel fails.

The Guidelines sentencing range applicable in Mr. J o nes’s case is 292 to 365

months. The district court sentenced Mr. Jones to two consecutive sentences of 164

months, which total s 328 months. This sentence is in the middle of the applicable

Guidelines range. The district court judge explained his belief that this sentence was required to address the seriousness of the offenses, to provide adequate deterrence to

criminal conduct, and to protect the public. Thus, we see no reason why such a sentence should be deemed “unreasonable.”

Accordingly, the judgment of the district court for both Defendants Simmers and

Jones is AFFIRMED.