03-1270 United States of America v. OMAR FELICIANO, ALINA LIS, and JOSEPH MIEDZIANOWSKI

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 23, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 02-4193, 03-1446 & 03-1270
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OMAR FELICIANO, ALINA LIS, and JOSEPH
MIEDZIANOWSKI,
Defendants-Appellants.
Appeals from the United States
District Court for the Northern
District of Illinois, Eastern
Division.
No. 98 CR 923
Blanche M. Manning, Judge.
Order
We remanded to the district judge under United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005), so that she could tell us whether the additional discretion provided by United
States v. Booker, 543 U.S. 220 (2005), would have affected the defendants' sentences.
The judge gave an affirmative answer with respect to Omar Feliciano and Alina Lis. Both
of these defendants now seek full remands for resentencing, and the United States concedes that
defendants are entitled to that relief. Accordingly, these sentences are vacated, and the cases are
remanded for resentencing.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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Nos. 02-4193, 03-1446 & 03-1270 Page 2
The judge concluded, however, that additional discretion would not have led to a lower
sentence for Joseph Miedzianowski. We must decide, given this knowledge, whether his sentence
is plain error--for Miedzianowski had not raised an argument in the district court concerning the
allocation of fact-finding authority between judge and jury. We hold that plain error did not
occur, because the sentence is not an unjust one. Although it is severe (life imprisonment), it is
within the Guideline range, which remains the starting point and a presumptively reasonable
disposition after Booker. See United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
The district court's memorandum on remand concluded that the severity, number, and
duration of Miedzianowski's crimes, coupled with the fact that he committed these offenses
while sworn to uphold the law as a police officer, justify the greatest non-capital sanction
available. Miedzianowski does not contend that any of the statutory considerations, see 18
U.S.C. §3553(a), demonstrates that his sentence is unreasonable. Instead he devotes most of his
memorandum to asking us to disregard the legal analysis adopted in Mykytiuk. We see no reason
to do that.
The district judge did not address the §3553(a) factors at Miedzianowski's sentencing--
understandably, as it occurred before Booker. But that does not turn a reasonable sentence into
plain error; indeed, it would not be error as a rule even after Booker, as United States v. Dean,
414 F.3d 725 (7th Cir. 2005), holds. A judge should discuss on the record substantial arguments
that a particular consideration calls for lenity, see United States v. Cunningham, 429 F.3d 673
(7th Cir. 2005), but Miedzianowski does not identify any argument that he made and the district
judge ignored at his sentencing. And, to repeat, our review is limited to a search for plain error; in
Cunningham the argument that succeeded on appeal had been preserved in the district court,
where here it was not.
Miedzianowski's sentence is affirmed.

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