United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 22, 2007

Decided March 1, 2007

Before

 Hon. WILLIAM J. BAUER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 06-3170

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES STEVENS,

Defendant-Appellant.

Appeal from the United States 

District Court for the 

Central District of Illinois.

No. 05 CR 30077

Jeanne E. Scott,

Judge.

O R D E R

James Stevens pleaded guilty to one count of conspiracy to manufacture

methamphetamine, 21 U.S.C. §§ 841(a)(1), 846. The district court sentenced him to

72 months’ imprisonment, a sentence significantly below the advisory guidelines

range. On appeal, Stevens argues that his sentence was nonetheless unreasonably

high. Because Stevens’s sentence was reasonable, we affirm.

In March 2004 Stevens and a coconspirator purchased over 255 packages of

pseudoephedrine, containing 6334 tablets, to make methamphetamine. Then they

drove to a fertilizer plant to steal anhydrous ammonia. However, their plans were

foiled when two police officers spotted their unoccupied car near the plant, with the

packages of pseudoephedrine in plain view. The officers searched the unlocked car

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-3170 Page 2

and discovered a wallet containing a driver’s license and credit cards belonging to

Stevens. The police arrested Stevens a few months later, charging him with

conspiracy to manufacture methamphetamine. In January 2006 Stevens pleaded

guilty to the charge without a plea agreement.

Both the government and Stevens disagreed with the sentence recommended

in his PSR. Stevens’s PSR calculated a base offense level of 34, based on the

marijuana equivalent of pseudoephedrine by weight, U.S.S.G. § 2D1.1; a three-level

reduction for acceptance of responsibility; and a criminal history category of II,

based on two misdemeanor drug offenses. This led to an advisory sentencing range

of 121 to 151 months’ imprisonment. At sentencing, the government recommended

a sentence 40% lower than the bottom of the sentencing range, or 72 months. The

government explained that it sought this unusually large reduction because Stevens

had provided substantial assistance to the government throughout its prosecution

of the cases against him, his coconspirator, and other drug suppliers, U.S.S.G.

§ 5K1.1. But Stevens argued that his sentence should be reduced further because a

72-month sentence overstated his actual culpability. He asserted that he is not a

drug dealer and does not manufacture (or “cook”) methamphetamine; his only role

in the conspiracy was to drive and obtain the pseudoephedrine and anhydrous

ammonia, for which he was to receive $1,500. Stevens also contended that his

criminal history score was unduly harsh because he had only two misdemeanor

convictions and no felony convictions in his past. 

The district court observed that the instant drug offense was “very serious,”

that Stevens had intended to profit from it, and that earlier punishments for other

criminal infractions had not deterred his misconduct, although he had made some

efforts to decrease his personal drug use. Accordingly, consistent with the

government’s recommendation, the district court sentenced Stevens to 72 months’

imprisonment and three years’ supervised release. The court further ordered

Stevens to participate in substance abuse treatment, obtain his G.E.D. either in

custody or within twelve months of release, and obtain and maintain employment

or participate in a job training program.

On appeal, Stevens acknowledges that his sentence was below the advisory

guidelines range, but he argues that his sentence was unreasonable because the

district court “improperly rested its sentencing decision on factors that were not

unique or personal to” him. Stevens asserts that sentences for drug crimes are

based primarily on the quantity of drugs involved and therefore do not take into

account each defendant’s unique circumstances and role in the offense. See United

States v. Wallace, 458 F.3d 606, 611 (7th Cir. 2006) (distinguishing between

“common and individualized factors” in sentencing). He contends that district

courts should not “refuse to impose a below-Guidelines sentence and justify that
No. 06-3170 Page 3

decision by relying on attributes applicable to any defendant charged with the same

crime.”

Stevens’s argument is unpersuasive because his guidelines range was

calculated properly (he does not contend otherwise) and his below-guidelines

sentence was reasonable. A sentence within the properly calculated guidelines

range is presumed reasonable. United States v. Gama-Gonzalez, 469 F.3d 1109,

1110 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). 

Although the Supreme Court has recently granted a writ of certiorari to consider

whether according a presumption of reasonableness to a sentence no higher than

the guidelines range is consistent with United States v. Booker, 543 U.S. 220 (2005),

see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006),

cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), the resolution of that

question would not affect the conclusion that Stevens was reasonably sentenced. 

Independent of any presumption of reasonableness, we have noted that “[i]t is hard

to conceive of below-range sentences that would be unreasonably high.” United

States v. George, 403 F.3d 470, 473 (7th Cir. 2005). This is true for Stevens’s

sentence at 40% below the low end of his range.

And contrary to Stevens’s assertion, the district court did adequately consider

factors unique to Stevens and his offense before issuing the sentence, in accordance

with 18 U.S.C. § 3553(a). Considering the nature and circumstances of the offense,

the district court noted this was a “very serious offense,” involving a “terrible drug”

which “destroys people’s bodies and their minds.” Turning to Stevens’s own history

and characteristics, the court observed that Stevens’s criminal history showed a

“progression or repeat of problems with drugs related to methamphetamine,”

including three different offenses within five years. The court also considered

Stevens’s recent efforts to stop using drugs and to work hard at the small business

he owns, as well as his cooperation with the government, but expressed doubt that

Stevens would be deterred from future criminal activity by a lighter sentence

because he had received leniency in the past. The court identified the need to avoid

unwarranted sentencing disparities between defendants with similar records. The

court noted that even though Stevens wasn’t going to manufacture or sell the drugs,

he was still intending to profit from the operation. Finally, the district court

considered Stevens’s need for educational training and effective treatment, when it

ordered him as part of his sentence to obtain his G.E.D., find work, and participate

in substance abuse treatment programs. 

In his brief and at oral argument, Stevens made the muddled claim that his

sentence was within the guidelines range, when in fact it was below the advisory

guidelines range. Stevens seems to suggest that the district court’s reduction of his

sentence from the low end of the guidelines range by 40% effectively reduced his

base offense level from 34 to 26, yielding a new advisory sentencing range of
No. 06-3170 Page 4

70-87 months. Stevens perhaps believes that the district court should have

“departed” from that “new” guidelines range. However, we have stated that the

concept of “departures” has been rendered obsolete post-Booker, see, e.g., United

States v. Spano, Nos. 06-1562, 06-1585, 06-1604, 2007 WL 401355, at *3 (7th Cir.

Feb. 7, 2007); United States v. Cooper, 461 F.3d 850, 855 (7th Cir. 2006), and

therefore the district court’s 40% sentence reduction did not create a lower

sentencing range from which there could be a further “departure.” Rather, the

court simply sentenced Stevens below the advisory range.

 AFFIRMED.