                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




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

                             Argued March 27, 2006
                              Decided April 6, 2006

                                     Before

                    Hon. RICHARD D. CUDAHY, Circuit Judge

                    Hon. MICHAEL S. KANNE, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 04-3654

UNITED STATES OF AMERICA,              Appeal from the United States District
    Plaintiff-Appellee,                Court for the Western District of Wisconsin

      v.                               No. 04-CR-0056-S-01

VICTOR WARD,                           John C. Shabaz,
     Defendant-Appellant.              Judge.


                                   ORDER

      Victor Ward pleaded guilty to distributing cocaine base in violation of 21
U.S.C. § 841(a)(1). At sentencing the district court applied the sentencing
guidelines as advisory in anticipation of a ruling in United States v. Booker, 543
U.S. 220 (2005), which was then pending before the Supreme Court. The court
sentenced Ward to a prison term of 135 months and also announced that it would
impose the identical sentence even assuming the guidelines were mandatory. Ward
argues that the sentencing court, despite purporting to apply the guidelines as
advisory, failed to do so. We affirm the judgment.
No. 04-3654                                                                    Page 2

        Ward was arrested after repeatedly selling crack cocaine to an informant. A
later search of his father’s home disclosed approximately 85 grams of crack that
Ward had stored there. Ward was charged with four sales but pleaded guilty to a
single count involving 7.02 grams of crack. That drug amount, coupled with Ward’s
prior drug conviction, yielded a statutory minimum term of 120 months. 21 U.S.C.
§§ 841(b)(1)(B)(iii), 851.

       Ward was sentenced in October 2004 while this court’s decision in United
States v. Booker, 375 F.3d 508 (7th Cir. 2004), was under review in the Supreme
Court. At sentencing the district court explicitly stated that, in view of Booker, it
would impose a sentence consistent with the factors in 18 U.S.C. § 3553(a) and look
to the guidelines only “as an advisory and a reliable indicator.” In formulating a
sentence the court considered the nature of the offense; Ward’s criminal history,
personal characteristics, and employment history; and the need to deter future
criminal activity and protect the public. The court also considered written
argument and character letters submitted by Ward, as well as defense counsel’s
oral argument for a sentence at the low end of the range. Counsel noted that Ward
was only 19 when he incurred his prior drug conviction 12 years before sentencing
in this case. Counsel also represented generally that a long prison term would
impact Ward’s children and other family members with whom he has close and
loving relationships. Finally, counsel argued that a sentence at the low end of the
range was appropriate because Ward entered his plea late—and therefore lost the
opportunity for an additional one-level reduction—only because he was focused on
seeking pretrial release to visit his dying father.

       Ultimately the district court imposed a term of 135 months, the high end of
the guidelines range of 120 to 135 months. The court explained that, in light of
Ward’s “numerous violations over a significant period of time” and the fact that he
apparently had supported himself by selling crack for most of his adult life, a
sentence of 135 months would “achieve the societal interest of punishing and
deterring the defendant as well as protecting the community.” The court added
that, even under a mandatory guidelines scheme, its sentence would be the same.

       Ward does not assert that the underlying calculation of his guidelines
imprisonment range was incorrect, nor does he argue that the sentence was
unreasonable. Rather, he essentially argues that the district court’s statement that
it was applying the guidelines as advisory should not be given weight because,
according to Ward, the court could not have known how to apply the guidelines as
advisory prior to the Supreme Court’s decision in Booker. This argument is without
merit because the district court was following our directive, see Booker, 375 F.3d at
515, that sentencing courts formulate alternative sentences as a matter of
prudence.
No. 04-3654                                                                 Page 3

       Moreover, we have affirmed sentences that applied the guidelines as advisory
during the period when this court’s Booker decision was under review by the
Supreme Court. For example, in United States v. Bryant, 420 F.3d 652 (7th Cir.
2005), the sentencing court, in anticipation of the Supreme Court’s decision in
Booker, treated the guidelines as advisory, considered the § 3553(a) factors, and
imposed a discretionary sentence that fell within the guidelines range. Id. at
654–56. We rejected Bryant’s argument that the sentencing court erred in
attempting to anticipate the fate of the guidelines—the very argument that Ward
makes in this case—and found that the sentencing court properly treated the
guidelines as advisory. Id. at 655–56. And in United States v. Lister, 432 F.3d 754
(7th Cir. 2005), Judge Shabaz took the same approach he did here by imposing a
sentence using the guidelines as advisory and then stating an alternative,
mandatory sentence should the Supreme Court find the guidelines constitutional.
Id. at 757–59. We found no Booker error in the sentencing court’s attempt to
anticipate the future of the guidelines by viewing them as advisory. Id. at 761–62.
This case is no different from Bryant and Lister in that respect.

      Because the district court properly imposed a sentence that applied the
guidelines as advisory, there was no Booker error. Accordingly, we AFFIRM the
judgment of the district court.
