United States of America v. ROBERT SEELEY and EDUARDO RUIZ-HERNANDEZ

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2005
Decided December 21, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 04-2205, 04-2217
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT SEELEY and EDUARDO
RUIZ-HERNANDEZ,
Defendants-Appellants.
Appeals from the United States
District Court for the
Western District of Wisconsin.
No. 03-CR-150-S-02
John C. Shabaz, Judge.
O R D E R
Robert Seeley and Eduardo Ruiz-Hernandez pleaded guilty to conspiring to
distribute and possess with intent to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. In April 2004, the district court
sentenced Seeley to 105 months’ imprisonment, near the top of the applicable
Sentencing Guidelines range (87 to 108 months), and Ruiz-Hernandez to 109 months’
imprisonment, in the middle of the relevant range (97 to 121 months). Through an
order dated September 7, 2005, we rejected Seeley’s challenge to the district court’s
application of § 2D1.1(b)(1) of the Guidelines, which calls for a two-level increase to a
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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Nos. 04-2205 & 04-2217 Page 2
sentence “[i]f a dangerous weapon (including a firearm) was possessed.” In addition,
however, we ordered a limited remand in both Seeley and Ruiz-Hernandez’s cases so
that the district court could inform us whether it considered their sentences to be
appropriate, given that the Guidelines are no longer mandatory. See United States v.
Booker, 125 S. Ct. 738 (2005); United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
As this court held in Paladino, if the district court indicates that it would impose the
same sentence, that sentence will be affirmed against a plain-error challenge so long
as it is reasonable. 401 F.3d at 484. If a sentence is within the properly calculated
Guidelines range, it is presumptively reasonable. See United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). A defendant can rebut this presumption only by demonstrating
that her sentence is unreasonable when measured against the factors set forth in 18 U.S.C. §
3553(a). Id.
The district court has informed us that it would impose the same sentences on
both Seeley and Ruiz-Hernandez under the advisory Guidelines. The court considered
Seeley’s argument that his close relationship with his parents, fiancée and young
daughter, his lack of a significant criminal history, and his drug addiction supported
a lower sentence, but concluded that “[t]hese factors are counterbalanced by
defendant’s lengthy participation in a conspiracy to distribute a significant amount of
cocaine and marijuana, the fact that his relevant conduct involved a drug amount near
the top of the drug quantity range of 3.5 to 5 kilograms of cocaine and his reported
threats to a government witness while on pretrial release.” The court also rejected
Seeley’s contention that the length of his sentence was unduly long in comparison to
his co-defendants, explaining that “[g]iven the defendants’ participation in the
conspiracy and his possession of a firearm to protect his drug trafficking . . . there is
no unwarranted sentencing disparity between his sentence of 105 months and the
sentences of his co-defendants.” As to Ruiz-Hernandez, the district court stated, after
considering arguments related to his youth, lack of serious criminal history, and
relatively short involvement in the conspiracy, that “[these factors] are
counterbalanced by defendant’s awareness of the entire scope of the conspiracy, his six
month participation in the ongoing conspiracy and his illegal entry into the United
States.”
After receiving the district court’s statement, we invited the government and
both Seeley and Ruiz-Hernandez to file any arguments concerning the ultimate
disposition of this appeal; the government and Seeley responded, but Ruiz-Hernandez
did not. Seeley challenges his sentence as unreasonable on grounds similar to those he
presented to the district court, arguing that given his limited criminal history and
extensive family connections “[n]othing in [his] background suggests that he is a risk
to reoffend,” and that his sentence is excessive in comparison to those received by his
co-defendants. The government argues that the district court adequately considered
and rejected both arguments.

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Nos. 04-2205 & 04-2217 Page 3
Our review of the reasonableness of a district court’s sentencing determination
within an applicable Guidelines range is deferential. See Mykytiuk, 415 F.3d at 608
(commenting that “it will be a rare Guidelines sentence that is unreasonable”). Perhaps
the district court could have concluded, after considering Seeley’s individual
circumstances and the sentences of his co-defendants, that a lower sentence was
warranted. We cannot say, however, that the court’s contrary conclusion was
unreasonable. The district court was entitled to conclude on the basis of these facts, for
example, that Seeley’s drug use was not a mitigating factor, but instead was a reason
to impose a longer sentence that would “protect the community and provide the
defendant with adequate time to participate in substance abuse treatment.” Similarly,
although Seeley’s sentence was comparable to those of co-defendants who possessed
larger drug quantities, Seeley alone was found to have possessed a firearm, an
enhancement factor that reasonably led the district court to conclude that there was
no unwarranted sentencing disparity.
As for Ruiz-Hernandez, he has not presented any arguments based on § 3553(a)
and thus has failed to rebut the presumption of reasonableness that attaches to his
sentence, which falls within the applicable Guidelines range. We therefore find his
sentence reasonable.
Accordingly, we A FFIRM the judgment of the district court.

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