United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

March 3, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

UNITED STATES OF AMERICA, ] Appeal from the United

 Plaintiff-Appellee, ] States District Court for

 ] the Eastern District of

No. 04-2206 v. ] Wisconsin.

 ] 

BRYCE A. FREEMAN, ] No. 03 CR 128

 Defendant-Appellant. ] 

 ] Charles N. Clevert, Jr.,

 ] Judge.

Bryce Freeman was found guilty of one count of conspiracy to manufacture

and distribute 50 grams or more of methamphetamine and two counts of possession

with intent to distribute 5 grams or more of methamphetamine. The district court

calculated a sentencing range of 210 to 262 months and sentenced Freeman to 210

months’ imprisonment. In his opening appellate brief, Freeman argued that his

sentence ran afoul of the Sixth Amendment because it exceeded the maximum

sentence the district court could have imposed solely on the basis of the facts found

by the jury and that his case should be remanded to the district court for

consideration of whether resentencing would be appropriate following United

States v. Booker, 543 U.S. 220 (2005). Based on Freeman’s brief and the

government’s motion, we ordered a limited remand under the terms set forth in

United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), for a determination

whether the district court would have imposed the same sentence had it understood

that the guidelines were advisory.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-2206 Page 2

The district court has now replied that it would today impose the same

sentence, knowing of the Guidelines’ advisory status. The parties were offered the

opportunity to respond before we finally resolved the appeal, and both parties have

responded. 

Freeman argues that the district court’s findings do not suffice to establish

the reasonableness of his sentence in light of 18 U.S.C. § 3553(a), that the district

court erred in its determination at sentencing that the actual weight of

methamphetamine attributable to him was greater than 150 grams, and that the

district court erred in denying his motion for downward departure based on his

argument that his criminal history category significantly over-represented the

seriousness of his criminal history. Finally, Freeman requests further briefing to

raise these issues. Although he already filed an opening brief, Freeman contends

that he argued only that he was entitled to a limited remand pursuant to

Paladino because he believed that such a remand was a procedural prerequisite for

challenging the reasonableness and correctness of his sentence. 

Despite Freeman’s protests that he did not know that he needed to fully brief

all of his sentencing issues in his opening brief, the rule that arguments not raised

in opening brief are waived is well-established. See, e.g., United States v. Blaylock,

413 F.3d 616, 619 (7th Cir. 2005); United States v. Harris, 394 F.3d 543, 559 (7th

Cir. 2005). Freeman’s sentence is within the properly calculated guideline range

and therefore presumptively reasonable. See United States v. Mykytiuk, 415 F.3d

606, 608 (7th Cir. 2005). Freeman does not offer any evidence based on the factors

recognized by § 3553(a) that would tend to rebut that presumption. Had the district

court thought that Freeman deserved a lower sentence based on the weight of the

methamphetamine or his criminal history, it was free to inform this court that it

was inclined to resentence. It did not. The district court’s findings show that it

properly considered the § 3553(a) factors. The court explained that it took into

account Freeman’s criminal history, detailing that history, and that it considered

and rejected his objections regarding the weight of the drugs. The court concluded

that “Freeman’s sentence is not out of line in view of the seriousness of his offense,

the need to deter others, and the need to protect the public from drug crimes and

drug dealers.” 

Because the district court would have imposed the same sentence postBooker, and because that sentence is reasonable, we conclude that Freeman’s

sentence was not the result of plain error. Accordingly, we AFFIRM the judgment

of the district court.