                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



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

                                   March 3, 2006


                                        Before

                   Hon. WILLIAM J. BAUER, Circuit Judge

                   Hon. RICHARD A. POSNER, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge


UNITED STATES OF AMERICA,                        ]   Appeal from the United
        Plaintiff-Appellee,                      ]   States District Court for
                                                 ]   the Eastern District of
No. 04-2206                        v.            ]   Wisconsin.
                                                 ]
BRYCE A. FREEMAN,                                ]   No. 03 CR 128
        Defendant-Appellant.                     ]
                                                 ]   Charles N. Clevert, Jr.,
                                                 ]        Judge.


       Bryce Freeman was found guilty of one count of conspiracy to manufacture
and distribute 50 grams or more of methamphetamine and two counts of possession
with intent to distribute 5 grams or more of methamphetamine. The district court
calculated a sentencing range of 210 to 262 months and sentenced Freeman to 210
months’ imprisonment. In his opening appellate brief, Freeman argued that his
sentence ran afoul of the Sixth Amendment because it exceeded the maximum
sentence the district court could have imposed solely on the basis of the facts found
by the jury and that his case should be remanded to the district court for
consideration of whether resentencing would be appropriate following United
States v. Booker, 543 U.S. 220 (2005). Based on Freeman’s brief and the
government’s motion, we ordered a limited remand under the terms set forth in
United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), for a determination
whether the district court would have imposed the same sentence had it understood
that the guidelines were advisory.
No. 04-2206                                                                  Page 2


      The district court has now replied that it would today impose the same
sentence, knowing of the Guidelines’ advisory status. The parties were offered the
opportunity to respond before we finally resolved the appeal, and both parties have
responded.

       Freeman argues that the district court’s findings do not suffice to establish
the reasonableness of his sentence in light of 18 U.S.C. § 3553(a), that the district
court erred in its determination at sentencing that the actual weight of
methamphetamine attributable to him was greater than 150 grams, and that the
district court erred in denying his motion for downward departure based on his
argument that his criminal history category significantly over-represented the
seriousness of his criminal history. Finally, Freeman requests further briefing to
raise these issues. Although he already filed an opening brief, Freeman contends
that he argued only that he was entitled to a limited remand pursuant to
Paladino because he believed that such a remand was a procedural prerequisite for
challenging the reasonableness and correctness of his sentence.

        Despite Freeman’s protests that he did not know that he needed to fully brief
all of his sentencing issues in his opening brief, the rule that arguments not raised
in opening brief are waived is well-established. See, e.g., United States v. Blaylock,
413 F.3d 616, 619 (7th Cir. 2005); United States v. Harris, 394 F.3d 543, 559 (7th
Cir. 2005). Freeman’s sentence is within the properly calculated guideline range
and therefore presumptively reasonable. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). Freeman does not offer any evidence based on the factors
recognized by § 3553(a) that would tend to rebut that presumption. Had the district
court thought that Freeman deserved a lower sentence based on the weight of the
methamphetamine or his criminal history, it was free to inform this court that it
was inclined to resentence. It did not. The district court’s findings show that it
properly considered the § 3553(a) factors. The court explained that it took into
account Freeman’s criminal history, detailing that history, and that it considered
and rejected his objections regarding the weight of the drugs. The court concluded
that “Freeman’s sentence is not out of line in view of the seriousness of his offense,
the need to deter others, and the need to protect the public from drug crimes and
drug dealers.”

       Because the district court would have imposed the same sentence post-
Booker, and because that sentence is reasonable, we conclude that Freeman’s
sentence was not the result of plain error. Accordingly, we AFFIRM the judgment
of the district court.
