United States of America v. Kevin W. Schmeilski

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 18, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2014
United States of America,
Plaintiff-Appellee,
v.
Kevin W. Schmeilski,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of
Illinois.
No. 02 CR 10099
Joe Billy McDade,
Judge.
O R D E R
After concluding that Kevin Schmeilski’s conviction should be affirmed, we
ordered a limited remand so that the district court could determine whether it believed
the sentence remains appropriate now that United States v. Booker, 125 S. Ct. 738
(2005), has relegated the United States Sentencing Guidelines to advisory status. See
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
The district court judge has replied that he would impose the same sentence
today knowing that the Guidelines are not mandatory. Therefore, “we will affirm the
original sentence against [Schmeilski’s] plain error challenge provided the sentence is
reasonable, the standard of review prescribed by Booker, 125 S. Ct. at 765.” Paladino,
401 F.3d at 484.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2014 Page 2
1Schmeilksi was sentenced to 213 months’ imprisonment on Count 1 and 60
months on Count 3, to run concurrently with each other and with the unexpired term
of a state court sentence on charges arising out of the same conduct. The 213 month
sentence resulted from the district court’s selection of a sentence at the high end of the
applicable Guideline range (235 months), less credit for 22 months already served in
state custody.
On July 1, 2005, we invited the parties to file, within seven days, any arguments
concerning the appropriate disposition of the appeal in light of the district court’s
decision. That time has now passed. We received a submission from the government
but not from Schmeilski.
Schmeilski received a sentence within the applicable Guidelines range.1
Therefore, the sentence is presumptively reasonable. United States v. Mykytiuk, 2005
WL 1592956, at *1 (7th Cir. July 7, 2005). The district court judge explained his belief
that the sentence was required to reflect the seriousness of Schmeilski’s conduct, as
well as to protect the three minor stepchildren Schmeilski sexually exploited and the
community. We see no reason why the sentence should be deemed “unreasonable.”
Accordingly, the judgment of the district court is AFFIRMED.

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