United States of America v. James A. Drake

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 27, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES A. DRAKE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.
No. 03 CR 83
Theresa L. Springmann,
Judge.
O R D E R
We remanded this case under United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), in order to ask the district judge whether she would have imposed a different
sentence on James Drake had she known at the time of sentencing that the federal
sentencing guidelines are not mandatory. See United States v. Booker, 543 U.S. 220
(2005). The district judge has advised us that she would not have deviated from the
103-month sentence she imposed. We invited both parties to comment on the
reasonableness of the sentence in light of the district court’s conclusion. Having
reviewed their responses, we now affirm.
Drake was convicted after a jury trial of possessing a firearm as a felon,
18 U.S.C. § 922(g)(1). The district court imposed a sentence of 103 months, a term of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 04-4240 Page 2
imprisonment within the applicable guidelines range of 92 to 115 months. Drake did
not challenge the calculation of that range, so we accept it as properly calculated and
therefore presumptively reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Drake may rebut the presumption by establishing that the sentencing
is unreasonable when measured against the factors set forth in 18 U.S.C. § 3553(a).
See id. However, in his submission to this court Drake does not argue that the 103-
month sentence is unreasonable; instead, he challenges the procedure we established
in Paladino and argues that the limited remand violated his due process rights because
he was not given a hearing.
We decline Drake’s invitation to reconsider our decision in Paladino. See, e.g.,
United States v. Brock, 433 F.3d 931, 938-39 (7th Cir. 2006). We also note that, in his
original appellate brief, Drake specifically requested a limited remand, not the full
resentencing he now appears to seek. We also reject Drake’s argument that the district
court was required to hold a hearing as part of the limited remand; we have held that
written submissions from the parties are adequate to apprise the district court of the
“sentencing factors that the parties believed were potentially most relevant to how the
court might exercise” its discretion under the advisory guidelines system. See United
States v. Della Rose, 435 F.3d 735, 736 (7th Cir. 2006).
Here, the district court rejected Drake’s position that a lower sentence was
required because, he said, his criminal history was overstated and his crime did not
involve any actual violence or physical injury. The district court concluded that it
would have imposed the same sentence in light of Drake’s criminal history and the
absence of any mitigating aspects of Drake’s “offense or his personal history” under §
3553(a). To the extent that Drake incorporates in his submission to this court the
arguments he made to the district court, we conclude that those considerations do not
undermine the reasonableness of the sentence imposed. Accordingly, we AFFIRM the
judgment of the district court.

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