In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1965

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSÉ FRANCISCO GAMA-GONZALEZ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-CR-168—John C. Shabaz, Judge.

____________

ARGUED NOVEMBER 14, 2006—DECIDED DECEMBER 5, 2006

____________

Before EASTERBROOK, Chief Judge, and POSNER and

COFFEY, Circuit Judges.

EASTERBROOK, Chief Judge. José Gama-Gonzalez is a

three-time loser. In 1975 he was convicted of conspiracy

to smuggle marijuana into this country, in violation of

21 U.S.C. §952(a), and was deported to his native Mexico.

In 1995 immigration officials allowed Gama-Gonzalez to

return as a permanent resident. He repaid that favor

by returning to crime. In 1996 he was convicted of possessing marijuana and was removed to Mexico in 1998 after his

release from prison. He came back almost immediately,

without any pretense of legal authority, and took up illegal

employment. (It was employment records that showed
2 No. 06-1965

his swift return.) In 2005 his presence in the United

States came to the attention of federal officials, and a

criminal prosecution for illegal reentry followed. See 8

U.S.C. §1326. Gama-Gonzalez pleaded guilty and was

sentenced to 37 months’ imprisonment.

Gama-Gonzalez contends that his sentence is unreasonably high even though it is at the low end of a range

properly determined under the Sentencing Guidelines. The

argument is unavailing, for a sentence within the Guidelines’ range is presumptively reasonable. See, e.g., United

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

United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006).

To say that a sentence within the range presumptively

is reasonable is not to say that district judges ought to

impose sentences within the range. See United States v.

Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006). It is only

to say that, if the district judge does use the Guidelines,

then the sentence is unlikely to be problematic.

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

district judges’ discretion. It will be the rare sentence

indeed that was required under the Guidelines before

Booker but forbidden afterward, when discretion has

gone up rather than down. One permissible use of discretion

is to start with the Guidelines’ framework, which is designed to curtail unjustified disparity in sentences— for

avoiding unjustified disparity is one of the statutory

objectives. See 18 U.S.C. §3553(a)(6); United States v.

Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006) (observing

that unjustified disparity is minimized by following the

Guidelines). Likewise the Guidelines recognize other

statutory criteria, such as choosing punishment that

achieves an appropriate level of deterrence and desert. 18

U.S.C. §3553(a)(2). When saying that sentences within

the Guidelines are presumptively reasonable, we mean

no more than the modest proposition that district judges

generally possess the discretion under §3553(a) and Booker
No. 06-1965 3

to follow the Guidelines, if they so choose, without acting

un-reasonably. It is accordingly unnecessary to hold

this appeal, and others like it, for the Supreme Court’s

decision in Rita v. United States, cert. granted, No. 06-5754

(U.S. Nov. 3, 2006).

A presumptively reasonable sentence is not a conclusively

reasonable one, for the Guidelines may omit some factor to

which §3553(a) or a sound exercise of discretion gives

weight. Gama-Gonzalez maintains that his sentence, in

particular, is unreasonable because the Guidelines gave too

much effect to his 1975 conviction. It can’t have been a

serious drug crime, Gama-Gonzalez insists, if immigration

officials were willing to forgive it in 1995 and allow him

permanent-residence status. This theme— that lenience in

the past requires more lenience today—has things backward. See United States v. Gonzalez, 462 F.3d 754 (7th Cir.

2006). When mercy does not succeed in achieving specific

deterrence, and the beneficiary continues a life of crime, we

learn that additional severity is essential. Gama-Gonzalez

committed a new crime at the earliest opportunity following

his readmission to the United States; and when he was

removed a second time, and told that reentry was illegal, he

reentered anyway almost before the ink was dry on the

warning and took up illegal employment. He is a career

criminal. No district judge is obliged (or well-advised) to

believe Gama-Gonzalez’s assertion that he has finally

learned his lesson, will return to Mexico and stay there, and

will at last go straight.

So straightforward is this that the district judge did not

need to discuss the subject. A judge must deal with serious

arguments for lower sentences, see United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), but GamaGonzalez’s argument was insubstantial. Many states, using

three-strikes laws, would imprison him for 25 years or more

even though none of his felonies was violent. See Lockyer v.

Andrade, 538 U.S. 63 (2003). His federal sentence of three
4 No. 06-1965

years and one month for a third felony conviction is comparatively modest.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-5-06