In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 03-1110, 03-1113 & 03-1195

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL SPANO, SR., EMIL SCHULLO,

and JAMES INENDINO,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 30—Ruben Castillo, Judge.

____________

SUBMITTED FEBRUARY 3, 2006—DECIDED MAY 9, 2006

____________

Before CUDAHY, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge. After a trial, the defendants

were convicted on various charges relating to a scheme

to defraud the Town of Cicero, Illinois, and sentenced to

prison. On appeal we affirmed the convictions but ordered a

limited remand to ask the judge whether he would have

imposed the same sentences had he known that the Guidelines were advisory. United States v. Paladino, 401 F.3d

471, 483-84 (7th Cir. 2005). Judge Castillo answered that

he would. We now affirm because we are unpersuaded by

the defendants’ arguments that the judge failed to exercise

his discretion and because we conclude that the sentences

are reasonable.
2 Nos. 03-1110, 03-1113 & 03-1195

The defendants rely heavily on certain comments of the

district court judge, expressed in his response to our

Paladino remand, to argue that the judge in fact failed

to exercise the discretion afforded by United States v.

Booker, 543 U.S. 220 (2005). These comments include the

judge’s opinion that our precedent concerning sentencing

post-Booker is “somewhat contradictory,” and his opinion

that we erred by sending him this Paladino remand.

A refusal or failure to exercise the discretion afforded

by Booker (or our inability to determine whether discretion was actually exercised) would require a further

remand. See United States v. Cunningham, 429 F.3d 673,

679 (7th Cir. 2005). But a fair reading of Judge Castillo’s

response does not support that conclusion. The judge

made it clear that he was reviewing the defendants’ sentences again “in light of all of the § 3553(a) factors,” and he

explained for each individual defendant why he believed the

Guidelines sentence was appropriate.

Nor is the judge’s explanation insufficient. It is true

that the judge focused more on the original sentencing

hearing than any new (by which we mean post-remand)

analysis of the § 3553(a) factors, but this is entirely understandable given the paucity of the defendants’ arguments

below. Neither Spano nor Schullo presented any analysis of

the § 3553(a) factors and Inendino’s exhortation to look at

his “real conduct” was considered, albeit briefly, and

rejected. On a Paladino remand a judge need not employ a

full-fledged methodology for measuring the reasonableness

of the Guidelines sentence against § 3553(a). See United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). And the

need for a judge to explain in detail his consideration of the

§ 3553(a) factors when choosing to stick with the Guidelines

sentence is proportional to the arguments made by the

defendants. See Cunningham, 429 F.3d at 678. When the

judge is not presented with much, he need not explain
Nos. 03-1110, 03-1113 & 03-1195 3

much. See id. In this case, the judge’s explanation was

sufficient.

We still must consider for ourselves whether the sentences are reasonable. “[A]ny sentence that is properly

calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness.” United States v. Mykytiuk,

415 F.3d 606, 608 (7th Cir. 2005). There is no challenge as

to the proper calculations of the Guidelines sentences.

Therefore, the defendants must rebut the presumption of

reasonableness attached to the Guidelines sentences “ ‘by

demonstrating that [their] . . . sentence[s] [are] unreasonable when measured against the factors set forth in §

3553(a).’ ” United States v. Brock, 433 F.3d 931, 938 (7th

Cir. 2006) (quoting Mykytiuk, 415 F.3d at 608).

None of the defendants have made this showing. Neither

Schullo nor Spano provide any reasons why their sentences are unreasonable when measured against the

§ 3553(a) factors, and we see none. Inendino, without any

specific reference to § 3553(a), argues that his sentence

of 78 months’ imprisonment is unreasonable because he

only received about $3,100 in profit from the illegal scheme,

and because he allegedly thought the fraudulent contract

which formed the basis of the criminal conduct was “legit.”

These arguments, however, ignore the jury’s conclusion that

he was part of a scheme to defraud the Town of Cicero, the

loss amount of over $75,000, and his Criminal History

Category IV. It is not unreasonable for the district court

judge to determine that Inendino’s conduct in this case and

criminal history were serious enough to warrant a sentence

within the Guidelines range. Finally, Schullo argues that

our Paladino procedure is unconstitutional, but he provides

no reason why we should reconsider it in this case–so we

will not. See Brock, 433 F.3d at 938.

The sentences are AFFIRMED.
4 Nos. 03-1110, 03-1113 & 03-1195

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-9-06