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

No. 05-1317
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

CARLOS RODRIGUEZ-ALVAREZ,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 04 CR 399—Samuel Der-Yeghiayan, Judge.
                          ____________
 ARGUED SEPTEMBER 8, 2005—DECIDED OCTOBER 12, 2005
                   ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
ROVNER, Circuit Judges.
  FLAUM, Chief Judge. Defendant-appellant Carlos
Rodriguez-Alvarez pleaded guilty to illegally reentering the
United States after having been deported following
a conviction for an aggravated felony, in violation of 21
U.S.C. § 1326. He now appeals his sentence of 87 months
imprisonment, claiming that it is unreasonable. For the
reasons stated herein, we affirm the sentence.


                        I. Background
  Defendant, Carlos Rodriguez-Alvarez, was born in Mexico
and is not a United States citizen. He first entered the
2                                                No. 05-1317

United States in August 1987. Once in this country, he was
convicted of many criminal offenses, including domestic
violence, distribution of narcotics, and possession of a
deadly weapon. He was first deported from the United
States in 1991, and then was deported again in 2000, after
being convicted of possession of a controlled substance with
intent to deliver, an aggravated felony. When defendant
was deported for the second time, he had served three years
of a seven-year prison sentence. Defendant returned to the
United States in February 2003 without seeking permission
to do so. He was discovered when local officials arrested
him for domestic battery.
  The government charged defendant with illegal reentry
under 21 U.S.C. § 1326. Defendant pleaded guilty with-
out the benefit of a plea agreement. While defendant was
awaiting sentencing, the Supreme Court issued its decision
in United States v. Booker, 125 S. Ct. 738 (2005). Both
parties had the opportunity to present their respective
views of Booker to the district court through briefs and oral
argument. Defense counsel presented several arguments
regarding the applicability of the sentencing factors listed
in 18 U.S.C. § 3553(a).
  After hearing the parties’ arguments and defendant’s
statement of apology, the district court set forth the basis
for the sentence it intended to impose. First, it acknowl-
edged Booker and its holding that the sentencing guidelines
were advisory and not mandatory. It then calculated the
applicable guidelines range, accepting defendant’s argu-
ment that the criminal history category should be reduced
from six, as recommended in the presentencing report, to
five. The base offense level was eight, but the court in-
creased this by 16 levels because the defendant was de-
ported after a criminal conviction for a felony drug traffick-
ing offense. The court determined that an offense level of 21
and a criminal history category of 5 yielded a range of 70 to
87 months imprisonment. The court then stated:
No. 05-1317                                                 3

     Defendant has argued that the Court should consider
   the guidelines as one factor and the government has
   argued that the Court should consider the guidelines as
   advisory. The defendant has argued that the guidelines
   don’t take into account rehabilitative needs of the
   defendant and the defendant further claims that he has
   been a father figure for prisoners at MCC, which is a
   prison in Chicago, that he’s a good person but he’s been
   depending on alcohol and drugs which has caused his
   crimes. He has stated that he will not return back to
   the United States if he is deported again and that his
   fiancé is willing to return to Mexico with him.
      The defendant also has stated to the Court that he’s
   not proud of his criminal history and he asked the
   Court to forgive his coming back to the United States
   illegally. He has indicated that he is older and more
   mature.
      The defendant has an extensive criminal history. His
   prior criminal convictions shows [sic] his flagrant
   disregard for the law and the likelihood of recidivism.
   Based upon his prior convictions and the seriousness of
   the convictions such as domestic battery, possession of a
   deadly weapon, it is clear that a severe sentence is
   warranted. Defendant has also argued that he has
   merely been charged with illegal entry into the United
   States and that I should consider that there are many
   illegal aliens in the United States who are working here
   and previously have been granted amnesty. However,
   the record also reflects that this is not the first illegal
   re-entry into the United States by the defendant. The
   defendant was previously deported and re-entered the
   United States illegally.
     Defendant has submitted letters from employers on
   his behalf that indicate that he is a reliable employee.
   However, there’s no indication by the employers
4                                               No. 05-1317

    whether they are aware that they are employing an
    illegal alien in the United States, whether they are
    familiar with the defendant’s extensive criminal history
    since the record reflects that while in the United States
    illegally, the defendant has been convicted of theft,
    illegal sale and transportation of narcotics, possession
    of a deadly weapon, disorderly conduct, under the
    influence of a controlled substance, unlawful violation
    of an order from protection and domestic battery. The
    defendant has asked the Court to consider 18 U.S.C. §
    3553.
      That section provides factors to be considered in
    imposing sentence—the nature and circumstances of
    the offense, the need for the sentence imposed, the
    seriousness of the offense, to promote respect for the
    law, provide just punishment for the offense, afford
    adequate deterrence to criminal conduct, [to] protect
    the public from further crimes, to provide the defendant
    with needed educational or vocational training, medical
    care or other correctional treatment in the most effec-
    tive manner, the kinds of sentences available, the kinds
    of sentence and sentencing range established for.
      The defendant has no right to be in the United States.
    He has come to the United States on two different
    occasions illegally, committed crimes, numerous
    crimes—crimes which are a felony—and has been
    deported previously. The defendant has re-entered the
    United States and has continued with the commission of
    the crimes after illegal re-entry. The defendant
    was deported again with the condition that he not
    return without special permission of the Attorney
    General. Yet, the defendant has asked the Court to
    forgive him for coming back to the United States. The
    Court has considered the crimes committed by the
    defendant, the favorable factors articulated by the
    defendant, the arguments by defendant and counsel and
No. 05-1317                                                 5

    government’s counsel; and after reviewing all of the
    documents presented to the Court and the arguments
    and considering the sentencing guideline’s range, I
    conclude that the defendant’s imprisonment at the
    highest range of the sentencing guideline would be
    appropriate. Therefore, the following will be the deci-
    sion of the court relating to the defendant’s sentence:
      It is the judgment of the Court that the defendant,
    Carlos Rodriguez-Alvarez, is hereby committed to the
    custody of the Bureau of Prisons to be imprisoned for a
    term of 87 months. . . . Upon release from imprison-
    ment, the defendant shall be placed on supervised
    release for a term of three years. (emphasis added)
  Defendant timely appealed his sentence.


                      II. Discussion
   In United States v. Booker, the Supreme Court held that
henceforth appellate courts must review sentences for
“unreasonableness.” Booker, 125 S. Ct. at 765-66. This
reasonableness review is guided by the factors set forth in
18 U.S.C. § 1335(a). United States v. Alburay, 415 F.3d 782,
786 (7th Cir. 2005) (citing Booker, 125 S. Ct. at 765-66)
(“Section 3553(a) . . . sets forth numerous factors that guide
sentencing. Those factors in turn will guide appellate courts
. . . in determining whether a sentence is reasonable.”).
These factors include the following: the nature and circum-
stances of the offense; the history and characteristics of the
defendant; the seriousness of the offense; the sentence
necessary to promote respect for the law and to provide just
punishment for the offense; the sentence that would provide
adequate deterrence to criminal conduct; the sentence that
would provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner; the sentencing
guidelines range; and the need to avoid unwarranted
6                                                No. 05-1317

sentence disparities among defendants with similar records
who have been found guilty of similar conduct. 18 U.S.C.
§ 3553(a).
  “[A]ny sentence that is properly calculated under the
Guidelines is entitled to a rebuttable presumption of
reasonableness.” United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). “[A] defendant can rebut this presump-
tion only by demonstrating that his or her sentence is
unreasonable when measured against the factors set
forth in § 3553(a).” Id. Appellate review of the application
of these factors is deferential. Id.
  Defendant has not argued that his sentence is unreason-
able when measured against any § 3553(a) factor. Rather,
he argues that the sentence must be vacated because the
district court made two procedural errors in imposing the
sentence. According to defendant, the district court did
not consider the § 3553(a) factors and did not state its
reasons for the imposition of a particular sentence with
reference to those factors.
  While defendant states that these procedural errors make
his sentence “unreasonable,” Mykytiuk suggests that a
sentence can only be vacated for unreasonableness based on
the application of § 3553(a) factors. Because defendant’s
argument is based on procedural errors and not on the
application of the factors, it is not appropriate to consider
defendant’s arguments under the “reasonableness” frame-
work. Instead, this Court should review the question of
whether the district court complied with the mandatory
post-Booker sentencing procedures under a non-deferential
standard of review. See United States v. Wesley, 422 F.3d
509, 2005 WL 2106166 (7th Cir. 2005) (“If a court’s decision
rests on an error of law, then ‘it is clear that an abuse of
discretion has occurred, as it is always an abuse of discre-
tion to base a decision on an incorrect view of the law [and]
review of this type of underlying legal ruling is non-deferen-
No. 05-1317                                                  7

tial.’ ”) (quoting United States v. Mietus, 237 F.3d 866, 870
(7th Cir. 2001)). Under this approach, the Court must
determine whether the sentencing court complied with the
mandatory procedures and, if it did not, conduct a harmless
error analysis if harmlessness is asserted by the govern-
ment. See United States v. George, 403 F.3d 470, 472-73
(7th Cir. 2005).
   Recent opinions from this Court set forth the procedures
to be followed in imposing a sentence post-Booker. Sentenc-
ing courts must continue to calculate the applicable guide-
lines range even though the guidelines are now advisory.
See Mykytiuk, 415 F.3d at 607; Alburay, 415 F.3d at 786
(“[T]he guidelines ‘must’ still be ‘consult[ed]’ and ‘take[n]
into account when sentencing.’ ” (quoting Booker, 125 S. Ct.
767)). Courts must also give defendants the “opportunity to
draw the judge’s attention to any factor listed in section
3553(a) that might warrant a sentence different from the
guidelines sentence.” United States v. Dean, 414 F.3d 725,
730 (7th Cir. 2005). In entering the sentence, the judge
must consider the sentencing factors in § 3553(a), United
States v. Re, 419 F.3d 582, 583 (7th Cir. 2005), and “articu-
late the factors that determined the sentence that he has
decided to impose,” Dean, 414 F.3d at 729.
  The district court completed each of these steps in this
case. First, the court calculated the applicable guidelines
range, resolving the parties’ disputes regarding the pre-
sentencing report and noting that the guidelines are
advisory rather than mandatory. Neither party suggests
that the court miscalculated the applicable range. Next, the
court gave both sides the opportunity to argue the § 3553(a)
factors and to present reasons for imposing a sentence
outside of the guidelines range. The court accepted written
briefs and oral argument on the relative weight of these
factors, summarized defendant’s central arguments, and
then stated that it had “considered . . . the favorable factors
articulated by the defendant.” While defendant, in essence,
8                                                No. 05-1317

argues that this Court should not accept the district court’s
statement on the record that it “considered” these factors,
he presents no basis for this Court to disbelieve the district
court’s assertion.
  The district court also properly articulated the factors
that determined the sentence that it imposed. It empha-
sized the defendant’s “extensive criminal history” and
concluded that defendant’s prior convictions showed, “his
flagrant disregard for the law and likelihood of recidivism.”
The court concluded from the seriousness of the convictions
that “it [was] clear that a severe sentence is warranted.”
The court later repeated that the defendant has twice
reentered the country illegally and has committed crimes
each time. Based on these factors, the court determined
that a sentence of 87 months, at the high end of the guide-
lines range, was appropriate.
  Defendant contends that the district court should have
gone through each of the factors (or at least those raised
by the defendant) and articulated what weight they
were given in making the final sentencing determination.
This Court has made clear, however, that the district court
need not do so. In United States v. George, this court stated,
“Judges need not rehearse on the record all of the consider-
ations that 18 U.S.C. § 3553(a) lists; it is enough to calcu-
late the range accurately and explain why (if the sentence
is outside it) this defendant deserves more or less.” George,
403 F.3d at 472-73. In Alburay, the sentencing court
discussed the seriousness of the crime and the defendant’s
criminal history, then noted that “[w]hen coupled with his
convictions and arrests . . . these facts establish defendant
Alburay’s gross disregard for the law and a pattern of
recidivism.” Alburay, 415 F.3d at 787. Although the court
did not expressly cite to any specific § 3553(a) factor, this
Court held that the district court had provided “a more than
adequate justification of the sentence under the § 3553(a)
factors.” Id. There, as here, the sentence was within the
No. 05-1317                                                  9

applicable guidelines range and the court’s statement of
reasons for choosing the high end of the range included
references to several § 3553(a) factors, although they were
not expressly identified. This is sufficient. See Dean, 414
F.3d at 729 (“[T]he sentencing judge can discuss the
application of the statutory factors to the defendant not in
checklist fashion but instead in the form of an adequate
statement of the judge’s reasons, consistent with section
3553(a), for thinking the sentence that he has selected is
indeed appropriate for the particular defendant.”).
  Defendant argues that § 3553(c) imposes a statutory
burden to present a detailed recitation of the factors in
§ 3553(a) and the court’s reasons for assigning relative
weights to those factors, contrary to our holding in United
States v. George. Section 3553(c) merely states, however,
that “[t]he court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular
sentence,” and that more “specificity” is required if
the sentence is outside of the guidelines range. 18 U.S.C.
§ 3553(c). This is not contrary to George. Similarly, defen-
dant points out that Federal Rule of Criminal Procedure 32
requires that a sentencing court “must—for any . . . contro-
verted matter—rule on the dispute or determine that a
ruling is unnecessary.” FED. R. CRIM. P. 32(i)(3)(B). Rule 32,
like § 3553(c), does not require a court to discuss the
§ 3553(a) factors in a specific degree of detail. In Dean, this
Court explained that district courts are justified in discuss-
ing the § 3553(a) factors generally because of “the indeter-
minate and interminable character of inquiry into the
meaning and application of each of the ‘philosophical’
concepts in which section 3553(a) abounds.” Dean, 414 F.3d
at 729. Neither George nor Dean contradict § 3553(c) or
Rule 32 by requiring only a general discussion of the
§ 3553(a) factors when the sentence falls within the guide-
lines range.
  Finally, defendant argues that his sentence is unreason-
able because the district court did not make explicit find-
10                                               No. 05-1317

ings of fact regarding the mitigating factors he set forth
during his arguments. For example, the court never
explicitly determined the credibility of the defense’s asser-
tions that defendant has a serious, untreated drug addic-
tion, or that he had saved a man’s life in prison. Defendant
claims that because the district court never specifically
found whether it believed these facts to be credible, this
Court is unable to review whether it gave those factors
appropriate weight when imposing defendant’s sentence.
  Defendant is correct that findings of fact are necessary to
effectuate appellate review. When a district court does not
make a finding of fact regarding a position advanced by a
party during a post-Booker sentencing, this Court
will assume, for the purposes of the reasonableness analy-
sis, that it considered the submission in a light favorable to
the offering party. If it can be effectively argued that the
sentence was unreasonable, given favorable implicit factual
determinations, the case will be remanded for the trial
court to make explicit factual findings.
  In this case, defendant acknowledges that the district
court found that he had an extensive criminal history.
Therefore, it would appear that the only findings of fact
that could possibly have resulted in a lower sentence for
defendant were findings that the mitigating factors that the
defense propounded were credible. Assuming that the
district court found those claims to be credible, defendant
has failed to show that it was unreasonable for the court to
weigh defendant’s criminal history heavily and impose a
sentence at the top of the guideline range—a range that is
presumptively reasonable. Mykytiuk, 415 F.3d at 608.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
sentence of 87 months imprisonment.
No. 05-1317                                         11

A true Copy:
      Teste:

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




               USCA-02-C-0072—10-12-05
