United States of America v. Kenneth Hackbarth

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2005
Decided September 29, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1003
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH HACKBARTH,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District
of Wisconsin.
No. 02-CR-206
Rudolph T. Randa,
Chief Judge.
O R D E R
After concluding that the district court judge correctly found that Kenneth
Hackbarth had abused a position of trust and therefore properly increased Hackbarth’s
offense level pursuant to U.S.S.G. § 3B1.3, we ordered a limited remand so that the
district court could determine whether his sentence remained 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 replied, indicating that he would impose the
same sentence today knowing that the Guidelines are not mandatory. On August 25,
2005, we invited the parties to file, within seven days, any arguments concerning the
appropriate disposition of this appeal in light of the district court’s decision. That time
has now passed without either party filing a brief. We now affirm the sentence
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1003 Page 2
imposed by the district court.
Hackbarth’s 120-month sentence falls in the upper end of the applicable 97 to
121 months sentencing range under the Guidelines. A sentence within the properly
calculated Guidelines range is presumptively reasonable. See United States v.
Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005). An appellant can rebut this presumption
by demonstrating that his sentence is unreasonable when measured against the factors
set forth in § 3553(a). Id. at 607.
Here, Hackbarth has made no argument as to why his sentence might be
unreasonable. The district court found that the “egregious nature and circumstances
of the offense outweigh consideration of the history and characteristics of the
defendant” under 18 U.S.C. § 3553(a). The facts in this case do not suggest otherwise:
Hackbarth defrauded investors – many of them relatives and friends from church – of
more than $6 million through his purported real estate investment firm. Instead of
using investors’ funds to buy or sell any property, he decided to use these funds for his
own personal gain.
In light the presumption of reasonableness that attaches to the district court’s
sentence, as well as the facts of Hackbarth’s crime, we see no why such a sentence
should be deemed “unreasonable.”
Accordingly, we AFFIRM the judgment of the district court.

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