# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 21, 2005

Decided August 10, 2005

Before

Hon. Daniel A. Manion, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Diane S. Sykes, Circuit Judge

No. 04-1128

United States of America,

Plaintiff-Appellee,

v.

Tommy R. Currie,

Defendant-Appellant

. Appeal from the United States Distr i ct

Court for the Central District

of Illinois

No. 02-20067

Michael P. McCuskey,

Chief Judge

.

O R D E R

Tommy Currie pleaded guilty to one count of possession with intent to distribute

five or more gram

s of crack in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). In

connection with his cooperation with the government, Currie admitted to distributing

2,880 grams of crack. On January 7, 2004, the court sentenced Currie to 240 months’

imprisonment, eight years’ supervised release, and a $100 special assessment.

On April 5 , 2005, we ordered a limited remand under the terms set forth in

United States v. Paladino

, 401 F.3d 471, 483-84 (7th Cir. 2005), petition for cert. filed,

(U.S. May 26, 2005) (No. 04-10402), for a determination whether the dist rict court

would have imposed a different sentence had it realized t hat the Guidelines were

advisory rather than mandatory. After considering both parties’ submissions on that

point, the court indicated that it would impose the same sentence of 240 months’ UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-1128 Page 2

imprisonment even under the advisory guidelines. The court explained:

This court has con sidered the arguments of counsel, the advisory

sentencing guidelines, the reasons for the original sentence, and the

factors set forth in 18 U.S.C. § 3553(a). This court notes that defense

counsel provided well-researched argumentson Defendant’s behalf.

However, based upon Defendant’s criminal history and the nature of the

offense to which he pleaded g uilty, this court finds that, had this court

known that the guidelines were advisory, it would have imposed the same

sentence. This court carefully considered the facts regarding Defendant’s

cooperation and assistance at the time of Defendant’s sentencing and,

after this careful consideration, determined that a downward departure

of two levels was appropriate. This court would, therefore, adhere to its

original sentence in this case.

As we e xplained in P aladino

, “the mere reimposition of the original sentence

does not insulate it from appellate review under the new standard.” 401 F.3d at 484.

“If [the district court determines that it would reimpose the original sentence], we will

affirm the original sentence against a plain-error challenge provided that the sentence

is reasonable, the standard of appellate review prescribed by Booker

. I d. (citing Booker

, 125 S. Ct. at 765). Therefore, we now review whether the sentence the district court

imposed was reasonable, the “final component of the Paladino plain error equation.”

United States v. Mykytiuk

, No. 04-1196, 2005 U.S. App. LEXIS 13508, *2 (7th Cir.

July 7, 2005).

“Pursuant to Booker , the reasonableness of a sentence is guided by the factors

set forth in 18 U.S.C. § 3553(a).” United States v. Alburay

, No. 03-3848, 2005 U.S. App.

LEXIS 15591, *9 (7th Cir. July 29, 2005) (quoting Booker

, 125 S. Ct. at 765-66). Section

3553(a) requires tha t a court consider, among other things, “the nature and

circumstances of the offense and the history and characteristics of the defendant”; the

need for the sentence “to reflect the seriousness of the offense, to promote respect for

the law, and to provide jus t punishment for the offense”; and “the need to avoid

unwarranted sentence disparities among defendants with similar records w ho have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), (a)(2)(A), and (a)(6).

We have recently held that “any sentence that is properly calculated under the

Guidelines is entitled to a rebuttable presumption of reasonableness.” U nited States

v. My kytiuk , No. 04-1196, 2005 U.S. App. LEXIS 13508, *4 (7th Cir. July 7, 2005).

Currie has not offered any evidence based on the factors recognized by § 3553(a) that

would tend to rebut that presumption. Apart from arguing that the sentence is simply

too harsh given the circumstances of his own crime, he also claims that the sentence

is unreasonable beca use it reflects the 100:1 disparity between sentences for crack

cocaine offenses and powder cocaine offenses found in the Sentencing Guidelines. ThatNo. 04-1128 Page 3

it does, but had the district court thought that Currie deserved a sentence closer to the

level prescribed for powder offenses, it was free to inform this court that it was inclined

to resentence. It did not do so, and we are not inclined to transform the ability to object

to the reasonableness of particular sentences into an opportunity to make a broadside

attack on across-the-board applications of particular Guidelines.

We conclude that Currie’s sentence, which actually reflected a 52-month

downward departure from the original range of 292 to 365 months, was reasonable. We

therefore AFFIRM the judgment of the district court.