In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2380

UNITED STATES OF AMERICA,

Plaintiff Appellee,

v.

DARIUS WILLIAMS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 04 CR 30130—David R. Herndon, Judge.

____________

ARGUED DECEMBER 13, 2005—DECIDED FEBRUARY 3, 2006

____________

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Darius Williams pleaded guilty to

possessing a firearm following a felony conviction, 18 U.S.C.

§ 922(g)(1). The district court calculated a 30-37 month

range under the Sentencing Guidelines and imposed a term

of 30 months. Williams appeals his sentence because he

believes that the district court did not properly consider his

personal history and characteristics when it decided to stay

within the guidelines range. Because the district court

considered the factors set out in 18 U.S.C. § 3553(a) and the

sentence it imposed is reasonably related to those factors,

we affirm the sentence.
2 No. 05-2380

I.

Williams was pulled over by an Illinois State Police

Trooper after he “fail[ed] to yield to traffic,” and the officer determined that the license plates on the car Williams

was driving were registered to another car. The officer

searched the car with Williams’s consent and found a

gun. Williams initially denied owning the gun, but later

admitted buying it on the street. Because he had previously

been convicted of a felony, Williams was charged with being

a felon in possession of a firearm.

The PSR recommended a sentencing range of 30-37

months, but Williams objected, arguing that the guideline range did not adequately account for his unusually

difficult background, the seriousness of the offense, or the

unlikelihood that he would commit future offenses. He

argued that his situation included several powerful mitigating factors. In addition to growing up with an absentee

father and a drug-addicted mother, Williams’s mother had

been brutally murdered by a serial killer when he was 16

years old. Further exacerbating this trauma, Williams was

forced to deal with extensive media coverage of the murder.

Additionally, Williams received his original felony conviction during an extremely difficult time in his life; the first

anniversary of his mother’s birthday after her death. And,

according to Williams, it was not a serious felony: he threw

a chair at a security guard at his high school who was

slightly injured. Williams also said he bought the gun to

protect his girlfriend and two children, whom he had been

working to support, after he had been car-jacked at gunpoint three months earlier.

During sentencing, the district court judge discussed

these mitigating facts, but nonetheless ruled that

Williams should be sentenced at the low end of the sentencing range under the guidelines. The judge stated that

Williams had “a tragic life,” that he was not an “ordinary”
No. 05-2380 3

criminal defendant, and that he should be commended

for “provid[ing] some stability for [his] children that

perhaps he didn’t even have in his own life,” but he pleaded

guilty to a serious crime and a sentence within the guideline’s range of 30-37 months was appropriate. The judge

therefore sentenced Williams to 30 months of imprisonment.

II.

On appeal, Williams argues that the guidelines range

is only one of several factors listed in § 3553(a), and

although the district court mentioned several of the

other factors, it did not give them any meaningful consideration. A sentence within the guidelines range is presumptively reasonable, and this court reviews the district court’s

decision deferentially. United States v. Cunningham, 429

F.3d 673, 2005 WL 3029083, *1 (7th Cir. Nov. 14, 2005);

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). Although a sentence within the guidelines range will

rarely be unreasonable, a defendant can rebut the presumption by showing that the sentence is unreasonable in light

of the factors in § 3553(a). Mykytiuk, 415 F.3d at 608.

This case is essentially identical to United States v.

(Amin) Williams, 425 F.3d 478 (7th Cir. 2005), in which the

defendant argued that the district court overstated

his offense and did not fully account for his troubled

childhood or his mental condition as mitigating factors

when sentencing him to 115 months of imprisonment. In

Williams, like in the present case, the defendant was a

convicted felon who had been charged with possession of

a firearm in violation of § 922(g)(1). Williams, 425 F.3d

at 479. The defendant had been raised in “a very rough

environment where most of the adults in his life were

involved in criminal activity,” and he suffered from mental

illness. Id. at 480. He also contended that his “possession”
4 No. 05-2380

of the gun consisted of briefly holding it before handing

it back to someone else, so it should not have been considered as serious as other types of possession offenses. Id.

at 481. We stated that the question was not how we would

have resolved the relevant factors, but “whether the district

judge imposed the sentence he or she did for reasons that

are logical and consistent with the factors set forth in

section 3553(a).” Id. at 481. Assuming that the factors the

defendant identified (a difficult childhood and psychological

problems) would support imposing a sentence below the

range specified by the guidelines, the factors did not require

a lesser sentence. Id. We found that the district court

considered the relevant factors under § 3553(a), and

reasonably decided that the range specified by the guidelines was appropriate.

In this case, Darius Williams has identified similar

(although possibly more traumatic) factors that he believes require a sentence below the guidelines range. The

district court considered both Williams’s background, and

the nature of the offense. Nonetheless, the court decided

that a sentence within the guidelines range would be

appropriate not only to deter Williams from possessing

a gun in the future, but to send a message to the community to stop carrying firearms. The court stated that

the sentence was consistent with Congress’s policy on

guns and avoiding disparate sentences.

Williams has certainly had a difficult childhood, and

despite that difficulty has, as his counsel points out,

“achieved a modicum of stability highlighted by a surprising

degree of personal responsibility.” But this is not a case

where the judge “passed over in silence the principal argument made by the defendant.” Cunningham, 429

F.3d at 679. As in (Amin) Williams, the district court

considered the relevant factors listed in § 3553(a), and

reasonably determined that a sentence at the low end of the

guidelines range was appropriate.
No. 05-2380 5

Finally, Williams contends in his reply brief that the

presumption that a sentence within the guidelines

range is reasonable conflicts with the majority holding in

United States v. Booker, 543 U.S. 220 (2005), because it

shifts the burden to the defendant to either disprove certain

facts that support the sentence or prove mitigating facts. As

a preliminary matter, the defendant has waived this

argument because he presented it for the first time in his

reply brief. See Gable v. City of Chicago, 296 F.3d 531, 538

(7th Cir. 2002); Help at Home, Inc. v. Med. Capital, 260

F.3d 748, 753 n.2 (7th Cir. 2001). In any event, we rejected

this argument in Mykytiuk: “while a per se or conclusively

presumed reasonableness test would undo the Supreme

Court’s merits analysis in Booker, a clean slate that ignores

the proper guidelines range would be inconsistent with the

remedial opinion.” Id. at 607. Therefore, a rebuttable

presumption that a sentence within the guideline’s range is

reasonable strikes the proper balance between these two

considerations. Id. at 608.

Williams did not demonstrate that the sentence the

district court imposed was unreasonable, and we AFFIRM

the sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-3-06