Chicago, Illinois 60604 Submitted September 6, 2006 Decided September 11, 2006… v. Michael Fadeyi

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 6, 2006
Decided September 11, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-1533 v.
MICHAEL FADEYI,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern
Division.
No. 00 CR 153
Matthew F. Kennelly, Judge.
Order
Fadeyi's conviction and most of his sentence were affirmed in 2004, although we
remanded for reconsideration of the forfeiture order. Before the appeal from the revised sentence
could be resolved, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005),
which led us to ask the district court whether recognition of additional discretion would have
affected the sentence. An affirmative answer led to another remand and a reduction in the term of
imprisonment from 151 to 132 months. Fadeyi has filed a third appeal.
The only argument now advanced is that, even though Booker reduced the Sentencing
Guidelines to advisory status, the district court must use a reasonable-doubt standard when
resolving any contested factual issue. That argument is inconsistent with the intellectual
foundations of Booker, which held that the Constitution requires an elevated standard (and an
opportunity, here waived, for decision by a jury) on disputes that raise the "statutory maximum
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 06-1533 Page 2
sentence." The remedial portion of Booker removed the Guidelines from the set of matters that
can change the statutory maximum. The burden of persuasion in federal sentencing accordingly is
the preponderance of the evidence. See, e.g., United States v. Bryant, 420 F.3d 652, 656 (7th Cir.
2005); United States v. Spence, 450 F.3d 691, 697 (7th Cir. 2006).
Affirmed

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