                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                             Argued October 19, 2005
                            Decided November 10, 2005

                                      Before

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

No. 05-1333

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Northern District of
                                             Indiana, South Bend Division
      v.
                                             No. 3:04 CR 75(01)
RONALD D. TIEDE,
    Defendant-Appellant.                     Robert L. Miller, Jr.
                                             Chief Judge.


                                    ORDER

       Ronald Tiede pleaded guilty to lying to a licensed firearms dealer, 18 U.S.C.
§ 922(a)(6), and on January 25, 2005 he was sentenced to 16 months’ imprisonment,
at the top of a properly calculated guidelines range. Tiede’s sole argument on
appeal is that the length of his sentence is unreasonable.

      In January 2004, Tiede was arrested in Clinton County, Indiana while
driving near the home of his ex-girlfriend Melissa Moon (now Melissa Baker) and
her husband, David Baker, in violation of a restraining order against him; police
found a stolen .22 caliber rifle and ammunition in the trunk of his car. Tiede had
No. 05-1333                                                                     Page 2

been harassing the Bakers for nearly two months, and for this the state charged
him with felony stalking, felony intimidation, receipt of stolen property, and
invasion of privacy. After serving three months in jail he was released on bond, but
the charges in Clinton County remained pending, as did criminal charges in both
Carroll County and White County. While on release, Tiede attempted to purchase
another firearm and lied on ATF 4473 form. First he denied being under criminal
information in any court for a felony, and second he stated that he was not subject
to a restraining order from harassing, stalking, or threatening an intimate partner.

       Tiede was charged with making false statements to a licensed firearms
dealer in connection with the attempted acquisition of a gun in violation of 18
U.S.C. § 922(a)(6). He pleaded guilty without the benefit of a plea agreement. At
sentencing the district court assigned Tiede a base offense level of 14 and reduced
this by 2 for his acceptance of responsibility. At criminal history category I, the
guidelines’ recommended range was 10-16 months, and the district court sentenced
him at the top of the range. See also 18 U.S.C. § 924(a)(2) (10-year maximum
statutory penalty). In arriving at this sentence, the district court explicitly relied
on factors outlined in 18 U.S.C. § 3553(a) including the nature of his offense, his
prior criminal history, and the need to protect the public.

       There is no challenge to the district court’s sentencing range calculation.
Instead Tiede argues that his sentence is unreasonably long in violation of United
States v. Booker, 125 S. Ct. 738 (2005). Because Tiede’s sentence lies within a
properly calculated guideline range, it is presumptively reasonable. United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). To overcome this presumption,
Tiede must show that his sentence is unreasonable when measured against the
factors outlined in § 3553(a). Id.

       Tiede argues that the sentencing court gave undue weight to the pending
state criminal charges. He suggests that the district court improperly treated his
false statement more severely than it would a less extensive lie, because charges
were pending on four criminal actions in three counties. He contends that the
number of charges pending has no bearing on the gravity of the offense. He further
argues that because the state had not yet acted on those charges the district court
should have acquiesced and allowed the state to adjudicate his pending charges and
impose its own punishment. But sentencing courts are not so limited in their
consideration of a defendant’s background and prior conduct. See 18 U.S.C. § 3661.
Judges may consider increasing a sentence based on pending criminal charges, or
even charges of which the defendant has been acquitted. United States v. Peterson,
256 F.3d 612, 615 (7th Cir. 2001); United States v. Short, 4 F.3d 475, 479 (1993).
One of the factors a district court must consider is the nature and circumstances of
the offense. 18 U.S.C. § 3553(a)(1). And here the district court properly considered
No. 05-1333                                                                     Page 3

the nature of the pending state charges that Tiede concealed from the gun dealer.
Tiede’s pending felony charges, the fact that one county banned his presence
entirely, and that he violated a restraining order hundreds of times, are
circumstances that aggravate his offense and justify the district court’s decision to
impose a high guidelines’ sentence.

        Tiede also argues that the district court erroneously justified the sentence
based on the need to protect the public, despite his low criminal history score and
his lack of criminal activity while on bond for four months prior to sentencing. The
district court considered imposing a sentence above the guidelines, but found that
Tiede’s good behavior while on bond partially mitigated the risk he posed to the
public and concluded that a sentence above the guidelines’ range could not be
justified in the name of protecting the public. Given Tiede’s conduct before being
arrested, his overall sentence is not unreasonable.

      For the foregoing reasons Tiede’s sentence is AFFIRMED.
