                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1



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

                               Argued April 17, 2007
                               Decided April 25, 2007

                                       Before

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 06-3037

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

              v.                              No. 06-CR-56-C-01

ANDRE FISHER,                                 Barbara B. Crabb,
         Defendant-Appellant.                 Chief Judge.

                                     ORDER

       Andre Fisher challenges his sentence for possessing crack with intent to
distribute, 21 U.S.C. § 841(a)(1), but he concedes that his claims are all are contrary
to the law of this circuit. The district court sentenced Fisher to 210 months’
imprisonment, the bottom of the guidelines range. On appeal Fisher contends that
the Supreme Court’s resolutions of Rita v. United States, 177 F.App’x. 357 (4th Cir.
2006), cert. granted, 127 S.Ct. 551 (U.S. Nov. 3, 2006) (06-5754), and Claiborne v.
United States, 439 F.3d 479 (8th Cir. 2006), cert. granted, 127 S.Ct. 551 (U.S. Nov.
3, 2006) (06-5618), may somehow affect his sentence. We affirm.

     A confidential informant tipped off police that Fisher was dealing crack in
Madison, Wisconsin. After the police observed the informant buy 56 grams of crack
No. 06-3037                                                                    Page 2

from Fisher, they obtained a warrant to search his apartment. The search turned
up 245 grams of crack, two firearms, and bullets. Fisher confessed to the police: “I
did this. This is my crime.”

       After Fisher pleaded guilty to possessing crack with the intent to distribute,
the probation officer calculated a guidelines range of 210 to 262 months’
imprisonment. At sentencing Fisher argued for a lower sentence based on his
contention that the guidelines range did not adequately account for his personal
circumstances or the nature of his crime. He primarily argued that the 100-to-1
ratio in the guidelines for crack versus powder cocaine resulted in a sentence more
severe than he deserved as a small-time street dealer without a long history of
violence. The district court disagreed that Fisher was small-time and found instead
that he was a “reasonably large-scale dealer.” The court also stated that it was not
free to disagree with what Congress had decided was an appropriate penalty for
dealing crack. The court therefore concluded that a sentence at the bottom of the
properly-calculated guidelines range was reasonable.

       On appeal Fisher first asserts that a “Guidelines sentence does not deserve a
presumption of reasonableness.” But this contention is premature considering that
we have not yet applied a presumption of reasonableness to his sentence. If Fisher
means to suggest that the court should not accord a presumption of reasonableness
to his sentence, then his contention is frivolous because he does not argue that his
sentence would be deemed unreasonable but for the presumption.

       Fisher next asserts that if the Supreme Court resolves Claiborne “in favor of
permitting a district court to substantially depart from the Guidelines without
extraordinary circumstances,” then district courts essentially would be free to
“depart from the Guidelines because the Court disagrees with them.” But this
statement is questionable at best. The issue presented in Claiborne is whether a
district court must be presented with “extraordinary circumstances” before it can
impose a sentence substantially below the guidelines range. Fisher has not
attempted to explain how the Court’s resolution of Claiborne will affect his
sentence. The legislative distinction between the sentencing consequences for
crimes involving crack versus powder cocaine was not at issue in Claiborne, and in
Fisher’s case the district court did not refuse to go below the guidelines range based
on a perceived need for showing of “extraordinary circumstances” to do so. In sum,
Fisher’s reference to Claiborne is more of a comment than a claim of error; there is
nothing for us to decide.

       Finally, Fisher’s argument on appeal regarding the 100-to-1 ratio in the
guidelines for crimes involving crack versus powder cocaine is different from the
argument he raised in the district court. At sentencing Fisher argued that the ratio
“greatly exaggerates the seriousness of this particular offense” and that the court
No. 06-3037                                                                     Page 3

should consider this overstatement as a reason to sentence him below the
guidelines range. On appeal, however, he argues that if “the Supreme Court
decides that a Guidelines sentence is not entitled to a presumption of
reasonableness and that district courts may impose below Guidelines sentences
based on less than extraordinary factors, it follows that district courts may depart
from the crack Guidelines simply because the court disagrees with them.” If Fisher
is arguing that United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006) (holding
that district courts cannot disregard the 100-to-1 ratio), was wrongly decided, then
he can present this argument now. He need not wait for the Supreme Court’s
rulings in Rita and Claiborne. But we have repeatedly reaffirmed Miller, see, e.g.,
United States v. Romero, 469 F.3d 1139, 1153 (7th Cir. 2006); United States v.
Gonzalez, 462 F.3d 754, 755 (7th Cir. 2006); United States v. Hankton, 463 F.3d
626, 629-30 (7th Cir. 2006), and we see no reason to overturn it now.

       After the district court calculated the guidelines range, the court was free to
consider how factors listed in 18 U.S.C. § 3553(a) affect the reasonableness of the
guidelines range. Miller, 450 F.3d at 275. And Fisher argued to the court why he
believed he should be treated as a minor crack dealer and why he thought the
guidelines range was unreasonably high, considering his personal characteristics
and the nature of his offense. The district court thought otherwise. But the court
was not free to conclude that any sentence that relied on the 100-to-1 ratio was
unreasonable, and to do so would have been reversible error. See United States v.
Jointer, 457 F.3d 682, 687 (7th Cir. 2006).

      Accordingly, we AFFIRM the district court’s sentence.
