                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued November 9, 2006
                             Decided December 8, 2006

                                       Before

                       Hon. DANIEL A. MANION, Circuit Judge

                       Hon. ILANA DIAMOND ROVNER, Circuit Judge

                       Hon. TERENCE T. EVANS, Circuit Judge

No. 05-4619

UNITED STATES OF AMERICA,                       Appeal from the United States
            Plaintiff-Appellee,                 District Court for the Northern
                                                District of Illinois, Eastern Division
                v.
                                                No. 04-CR-30-1
JOHN LAKES,
                Defendant-Appellant.            John W. Darrah,
                                                Judge.

                                       ORDER

       John Lakes pleaded guilty to various charges stemming from a scheme to
misuse credit-card numbers “skimmed” from customers at several restaurants and
a hotel in Chicago. The district court sentenced Lakes to a total of 40 months in
prison, which was the middle of the guidelines range. Lakes appeals his sentence
on the grounds that (1) the district court should have given him credit for a fully
discharged state sentence he served for a related crime, and (2) the term imposed is
unreasonable. We affirm.

      Lakes and three coconspirators stole credit-card numbers and encoded the
information on fraudulent cards, which they used to purchase nearly $20,000 worth
of merchandise. The probation officer calculated a guidelines imprisonment range
No. 05-4619                                                                     Page 2


of 37 to 46 months. Lakes objected to several aspects of this calculation, including
the lack of any reduction under U.S.S.G. § 5G1.3(b)(1) for the six months he already
served in state prison for a related offense. He argued that § 5G1.3(b)(1) should
apply because his discharged state term was “served as a result of conduct taken
into account in determining the guidelines range for the instant offense and will not
be credited to the federal sentence by the Bureau of Prisons.” Lakes did not argue
that any other subsection of § 5G1.3 should apply or challenge the constitutionality
of that section or any other. The district court held that § 5G1.3(b)(1) did not apply
because Lakes failed to meet two of the guideline’s three requirements. First,
§ 5G1.3(b)(1) applies only to undischarged state sentences, but Lakes’s state prison
term was fully discharged a year before his federal sentencing. Second,
§ 5G1.3(b)(1) applies only when the prior offense was the basis for an increase in
the offense level, but the conduct underlying Lakes’s state charge did not impact his
offense level under the guidelines.

       On appeal, Lakes has abandoned his contention that his sentence should
have been reduced under a straightforward application of § 5G1.3(b)(1). Now,
instead of arguing that the district court misapplied § 5G1.3(b)(1), Lakes argues for
the first time that the court violated his rights to equal protection and due process
because subsection (c) of § 5G1.3 allows federal credit for undischarged state
sentences, but not for discharged state sentences. Because Lakes did not challenge
the constitutionality of § 5G1.3 in the district court, he has forfeited this argument.
United States v. Thigpen, 456 F.3d 766, 769 (7th Cir. 2006). Review is thus for
plain error. Id.

       Subsection (b) of § 5G1.3 provides that a sentencing range must be adjusted
downward to account for time already served on certain undischarged state
sentences. In cases where subsection (b) does not apply (e.g., because the prior
conviction did not affect the offense-level computation), the district court has
discretion under § 5G1.3(c) to impose a sentence “to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). An
application note advises that while subsection (c) does not allow the court to adjust
the guidelines range to account for the completed portion of the undischarged
sentence, the court may “downwardly depart” from the range in “extraordinary
circumstances.” U.S.S.G. § 5G1.3 cmt. n.3(E).

      Lakes’s argument, then, is that this scheme violates his rights to equal
protection and due process because it allows the district court in “extraordinary
circumstances” to impose a sentence that accounts for an undischarged state
sentence, but not a similar discharged sentence. But whatever merit this argument
may have had in the past, after United States v. Booker, 543 U.S. 220 (2005), this
No. 05-4619                                                                    Page 3


perceived discrepancy is wholly illusory. Under Booker the sentencing guidelines
are merely advisory. United States v. Dean, 424 F.3d 725, 728 (7th Cir. 2005).
After calculating the guidelines range, the district court must then consider the
factors listed in 18 U.S.C. § 3553(a) to determine whether a sentence within the
guidelines range is appropriate. Id. And a sentence within the guidelines
range—such as Lakes’s—is presumptively reasonable. See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Hence, if Lakes believed that the
sentencing guidelines did not adequately address his circumstance, it was his
burden to spotlight that contention with the district court in an effort to rebut the
presumption. Id. His point is that the guidelines encourage a departure if the prior
sentence is undischarged but not if it has been fully served, yet we have made clear
after Booker, “departure” is an outmoded concept. United States v. Filipiak, 466
F.3d 582, 584 (7th Cir. 2006); United States v. Johnson, 472 F.3d 423, 426 (7th Cir.
2005). Before Booker the guidelines greatly cabined the district court’s authority to
depart below the range, see United States v. Walker, 447 F.3d 999, 1005 (7th Cir.
2006); Johnson 472 F.3d at 426, but after Booker that authority is broad, and it does
not have to rest on a specific guidelines provision. See United States v. Wallace, 458
F.3d 606, 608-09 (7th Cir. 2006). Lakes, though, never urged the district court to
impose a sentence below the guidelines range on the ground he advances here, so
the district court’s choice of a term within the range is reasonable. See United
States v. Hankton, 463 F.3d 626, 629 (7th Cir. 2006).

       Lakes raises two final arguments concerning his sentence. First he argues
that 40 months is unreasonable because, he says, the district court failed to give
proper weight to the factors set out in 18 U.S.C. § 3553. But the court did consider
Lakes’s criminal history, his age and personal characteristics, the nature of his
offense, and the increasing severity of his crimes, and it determined that a sentence
within the guidelines range would be appropriate. The judge is not required to
address each factor in a “checklist fashion.” Dean, 414 F.3d at 729. Lakes also
argues that Mykytiuk, which holds that a sentence within the guidelines range is
presumptively reasonable, is contrary to the Supreme Court’s decision in Booker,
543 U.S. 220, because “it has the effect of making the Guidelines mandatory.” But
we have consistently reaffirmed our holding in Mykytiuk. See United States v.
Wallace, 458 F.3d 606, 611 (7th Cir. 2006); United States v. Brock, 433 F.3d 931,
938 (7th Cir. 2006); United States v. Jordan, 435 F.3d 693, 696 (7th Cir. 2006). And
here the sentence is reasonable even without the presumption. See United States v.
Rita, 177 F.App’x 357 (4th Cir. 2006), cert. granted, 127 S.Ct. 551 (U.S. Nov. 3,
2006) (No. 06-5754).

      Accordingly, we AFFIRM Lakes’s sentence.
