                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-3505
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,
                             v.

GERALD W. SACHSENMAIER,
                                      Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
     No. 04-CR-0058-C-01—Barbara B. Crabb, Chief Judge.
                       ____________
    ARGUED OCTOBER 16, 2006—DECIDED JUNE 28, 2007
                    ____________


  Before POSNER, RIPPLE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Gerald Sachsenmaier was con-
victed after a jury trial of conspiring to distribute cocaine
in violation of 21 U.S.C. § 846 and distributing cocaine
in violation of 21 U.S.C. § 841. For purposes of sentenc-
ing, the district court found that he was a career offender,
and it imposed a sentence of 262 months’ imprisonment
(the low end of his advisory guideline range). On appeal,
Sachsenmaier attacks both his conviction and his sen-
tence. With respect to the conviction, he argues that the
district court erred when it denied his motion to suppress
the statements of two witnesses, and he claims that the
evidence was insufficient to support his convictions. His
sentence is flawed, he says, both because the district court
2                                               No. 05-3505

failed properly to apply the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), and because
he believes that the fact of a prior conviction should either
be admitted or found by a jury beyond a reasonable
doubt. We conclude that the district court committed no
reversible error when it refused to suppress the witness
testimony; that the evidence was sufficient to support
the conviction; and that the sentencing arguments are
without merit. We therefore affirm.


                             I
   This case arose out of drug dealings in Menominee,
Wisconsin. It began with the arrest of Lynn Field on May
23, 2003, for delivery of methamphetamine. Field im-
mediately agreed to cooperate with the police, and as part
of that cooperation, she telephoned a bar in Menominee
called the Den and asked for Lisa Connell. When Connell
picked up the telephone, Field asked her whether “Gerry”
had anything—referring, as Field later testified, to
Sachsenmaier. Field also told Connell that she needed
“like a couple gs if possible.” This, she explained, meant
some cocaine. Field had purchased cocaine from Connell
in the past, but she had never bought anything directly
from Sachsenmaier.
  After calling Connell, Field called Calli Schutts, in order
to obtain some cocaine. Schutts had been at the Den
earlier with Sachsenmaier, but the two had left and gone
to Schutts’s house to use drugs. Other people, including
Kim Larrabee, were also there. That evening, Larrabee
bought $200 worth of cocaine from Sachsenmaier on credit;
the next day, she gave the money to Schutts, but Schutts
did not turn it over to Sachsenmaier. At the time that
Field called Schutts, Sachsenmaier was hoping to furnish
the cocaine that Field wanted. He was unable to find any,
however, and so he arranged for Field to buy her drugs
from Brian LaRose.
No. 05-3505                                              3

  A few days later, Schutts was arrested and she also
agreed to cooperate with the police. She was able to record
one conversation with Connell, in which they discussed
“Gerry” (whom they also called “Sax”) and the money
Larrabee had given Schutts for the cocaine. Schutts
cooperated in recording other conversations as well, most
of them about the drug debt, but one in which she and
Gerry arranged for Gerry to deliver her an “eight ball.” In
the meantime, Sachsenmaier was also talking to under-
cover officer Vern Vandeberg, who was assigned to
the West Central Drug Task Force. At one point,
Sachsenmaier told Vandeberg that he could deal $5,000
worth of cocaine every two weeks. Sachsenmaier was
eventually arrested.


                            II
  On February 10, 2005, the government unsealed a two-
count indictment against Sachsenmaier in the district
court for the Western District of Wisconsin. On April 15,
2005, Sachsenmaier moved to suppress statements made
by Larrabee and Connell to Sergeant Russell Cragin, the
lead investigator on the case from the local sheriff ’s
department. He asserted that Sergeant Cragin had
coerced their statements and thus that it would violate
his due process right to a fair trial if those statements
were used. The magistrate judge held an evidentiary
hearing and recommended that the motion be denied; the
district court agreed and issued the appropriate order on
June 1, 2005. On June 6, the trial began before a jury,
which found Sachsenmaier guilty of both charges. He
was sentenced on August 17, 2005. Because he was a
career offender, his total offense level was 34 and his
criminal history category was VI, which yielded an advi-
sory guidelines range of 262-327 months. The district
court decided that a sentence at the bottom of that range
4                                             No. 05-3505

was reasonable and imposed a sentence of 262 months.
This appeal followed.


                           III
                            A
   We consider first Sachsenmaier’s challenge to the
district court’s ruling on his motion to suppress the
statements that Larrabee and Connell made to Sergeant
Cragin. Our review of the question whether a confession is
voluntary is de novo, although we defer to findings of
historical fact. United States v. Brooks, 125 F.3d 484, 492
(7th Cir. 1997). This standard is normally applied to the
defendant’s own statements, but we see no reason why
it cannot also be applied to the statements of co-conspira-
tors like Larrabee and Connell.
  The first problem Sachsenmaier faces is that he failed
to object to the report and recommendation of the magis-
trate judge. As the government points out in its appel-
late brief, this omission means that he has waived the
right to appellate review of this point. United States v.
Hall, 462 F.3d 684, 688 (7th Cir. 2006) (“[T]he failure to
object to the recommendations and decisions of a magis-
trate judge is one instance [in which] we have held [that]
waiver of appellate review results.”). It would not help
Sachsenmaier even if we were to treat this as a forfeiture,
because it is apparent on this record that Sachsenmaier
was not prejudiced by the court’s ruling. The government
never used the contested statements at trial: neither
Larrabee nor Connell testified, and when Sergeant Cragin
testified he made no reference to his conversations with
either woman. We therefore need not decide whether the
statements were coerced. If, as we strongly doubt, there
was any error in the district court’s pretrial ruling, it
was harmless and thus not a ground for reversal. See
No. 05-3505                                               5

Arizona v. Fulminante, 499 U.S. 279, 295 (1991) (holding
that harmless-error analysis applies to coerced confes-
sions).


                            B
  Sachsenmaier next contends that the evidence was
insufficient to support his convictions. Here too, it is not
clear whether he properly preserved his argument. The
defense moved for a judgment of acquittal under FED. R.
CRIM. P. 29(a) at the close of the government’s case,
claiming that the government had failed to meet its bur-
den of proof. Immediately after the court denied the
motion, the defense rested without presenting any evi-
dence. Sachsenmaier neither renewed this motion after
the jury returned its verdict, nor did he make a motion
for a new trial under FED. R. CRIM. P. 33. The govern-
ment argues that these omissions mean that we must
review his challenge to the sufficiency of the evidence
under the demanding plain error standard, rather than
under the (almost equally) demanding standard of
Jackson v. Virginia, 443 U.S. 307 (1979), under which
“the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” Id. at 319.
In this case, the outcome does not depend on which
standard of review we use, and so we save for another
day the question whether renewal of the motion for
acquittal when the defendant presents absolutely nothing
before the case reaches the jury is necessary. See, e.g.,
United States v. DeLeon, 247 F.3d 593, 596 n.1 (5th Cir.
2001).
  With respect to the conspiracy conviction, Sachsenmaier
insists that the evidence does not demonstrate any agree-
ment between him and any other person to possess or
6                                               No. 05-3505

distribute cocaine. For the distribution conviction, he
argues that the evidence shows only that other people
distributed cocaine on various dates. While it was possible
that a trier of fact might have agreed with him, it was
equally permissible on this record for the jury to find the
necessary agreement and distribution.
  Turning first to the conspiracy conviction, we conclude
that there is enough evidence in the record to support
the jury’s finding that Connell and Sachsenmaier know-
ingly collaborated to sell drugs on numerous occasions. The
evidence showed that Connell was far more than someone
who answered the telephone and helped people get in
touch with the “socially elusive” Sachsenmaier. Connell
took drug orders, arranged sales, collected drug money,
and acted as an intermediary between Sachsenmaier
and at least two different buyers. The recorded conversa-
tions bear this out, especially the one between Fields and
Connell. Fields asked directly whether “Gerry” had
anything to sell, and Connell helped set up a drug transac-
tion between Sachsenmaier and Fields. Fields testified
that she attempted to buy cocaine from Sachsenmaier on
numerous occasions, at least once successfully, and that
she always conducted the deals through Connell. In
addition, the evidence revealed that Sachsenmaier
worked with Schutts. Schutts was responsible for collect-
ing money from a buyer and giving it to Connell, for
Sachsenmaier. This evidence, which we rehearse by way
of example only (there is more in the record), was enough
to permit the jury to find that Sachsenmaier agreed with
others to distribute his cocaine. See, e.g., United States v.
Rock, 370 F.3d 712, 715 (7th Cir. 2004) (“Case law is clear
that when defendants are on the same side of a sale of
drugs to a third party, there is sufficient evidence of a
conspiracy.”) (citing United States v. Herrera, 54 F.3d 348,
353-54 (7th Cir. 1995)). The fact that neither Connell nor
Sachsenmaier testified makes no difference, as the jury
No. 05-3505                                                  7

was entitled to find the necessary agreement from circum-
stantial evidence. United States v. Hickok, 77 F.3d 992,
1005 (7th Cir. 1996).
  Sachsenmaier’s challenge to the distribution charge
fares no better. He focuses only on the sufficiency of the
evidence that shows that he actually “delivered” cocaine
to anyone. The definition of “delivery” in the statute is “the
actual, constructive, or attempted transfer of a controlled
substance . . . .” 21 U.S.C. § 802(8). The testimony of
Schutts is enough, in itself, to allow a rational jury to infer
that Sachsenmaier delivered drugs to Larrabee. Schutts
testified that she was present when he arranged the
cocaine deal with Larrabee. She also testified that al-
though she did not see Sachsenmaier physically hand the
drugs to Larrabee, she watched as Larrabee consumed
drugs from a table where Sachsenmaier (among others)
had “laid out” his drugs. Finally, she heard Sachsenmaier
give Larrabee instructions on how he wanted to be paid
for the drugs. Sachsenmaier points out that Larrabee
might have picked up someone else’s cocaine from the
table and ingested it, but this possibility is not enough to
preclude the jury from drawing the natural inference that
Larrabee bought her cocaine from Sachsenmaier and was
then arranging to pay for it.


                              C
  Last, we come to Sachsenmaier’s sentencing arguments.
He complains that this circuit erred in United States v.
Mykytiuk, 415 F.3d 606 (7th Cir. 2005), when it adopted
for purposes of appellate review a rebuttable presump-
tion that a district court’s selection of a sentence within
the advisory guidelines range is reasonable. Next, he
argues that, Mykytiuk or not, his 262-month sentence is
an unreasonable one in light of 18 U.S.C. § 3553(a).
Finally, he raises the argument that it was plain error to
8                                              No. 05-3505

enhance his sentence based on prior convictions that had
not been proven to a jury beyond a reasonable doubt or
admitted by him. We have nothing to say on the prior
conviction argument, which is squarely foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
and this court’s many decisions holding that Almendarez-
Torres is still good law after Booker. See, e.g., United
States v. Wilburn, 473 F.3d 742, 745-46 (7th Cir. 2007);
United States v. Williams, 410 F.3d 397, 402 (7th Cir.
2005). We confirm, however, that Sachsenmaier has
preserved this argument, should he wish to present it
to the Supreme Court.
  As for Mykytiuk, the Supreme Court has now expressly
endorsed the rebuttable presumption of reasonableness for
appellate review of a district court’s sentencing decision.
See Rita v. United States, No. 06-5754, 2007 WL 1772146
(June 21, 2007); United States v. Nitch, 477 F.3d 933, 937-
38 (7th Cir. 2007); United States v. Gama-Gonzalez, 469
F.3d 1109 (7th Cir. 2006). The Rita decision emphasized
that this is a standard for appellate review only. Rita,
2007 WL 1772146, at *9. The district courts must calculate
the advisory sentencing guideline range accurately, so that
they can derive whatever insight the guidelines have to
offer, but ultimately they must sentence based on 18
U.S.C. § 3553(a) without any thumb on the scale favoring
a guideline sentence. If, however, a district court freely
decides that the guidelines suggest a reasonable sentence,
then on appellate review the defendant must explain
why the district court was wrong.
  Conducting our own review of the reasonableness of
Sachsenmaier’s sentence, as he asks us to do, we conclude
that this sentence was a reasonable one. The district court
considered the guidelines as well as the factors spelled out
in § 3553(a). She looked at letters from people who think
that Sachsenmaier is “a terrific person,” and she acknowl-
No. 05-3505                                                9

edged that he had a serious cocaine problem. On the other
hand, she referred to his extensive history of seemingly
incorrigible drug dealing. She was particularly disturbed
by the fact that he had involved his son in his drug
activities. In the end, the judge said that the sentence she
chose “is sufficient to reflect the seriousness of your long-
term criminal conduct and protect the community from
further criminality on your part.”
  As we have said before, “[T]he role of this court is not
to choose between possible sentences, but rather to re-
view the reasonableness of the sentence imposed by the
district court.” United States v. Lopez, 430 F.3d 854, 857
(7th Cir. 2005). We have done so here, and we conclude
that the sentence of 262 months is a reasonable and
permissible one for Sachsenmaier.
  We therefore AFFIRM the judgment of the district court.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-28-07
