                             UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



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

                              Argued February 25, 2005
                              Decided February 10, 2006

                                         Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. KENNETH F. RIPPLE, Circuit Judge


No. 03-3884

UNITED STATES OF AMERICA,                             Appeal from the United States
                                                      District Court for the Northern
              Plaintiff-Appellee,                     District of Indiana, Hammond
                                                      Division.

                                    v.                No. 02 CR 44

WILLIAM DAVISON, also known as                        James T. Moody, Judge.
TALL ONE,

              Defendant-Appellant.


                                         ORDER

                                           I

      William Davison was convicted of two counts of distributing crack cocaine. At
sentencing, the district court determined by a preponderance of the evidence that Mr.
Davison was a member of a drug conspiracy that spanned several years and that Mr.
Davison also personally had distributed in excess of 1.5 kilograms of crack cocaine.
No. 03-3884                                                                      Page 2

The court further determined that Mr. Davison had used weapons in conjunction with
his distributing activities. Based on these determinations, the district court
sentenced Mr. Davison to 360 months’ imprisonment in accordance with the then-
mandatory United States Sentencing Guidelines. Mr. Davison appealed his
conviction and sentence.

       This court affirmed Mr. Davison’s conviction, but noted that, in sentencing Mr.
Davison, the district court had relied “on facts that were neither admitted by Mr.
Davison nor proven to the jury beyond a reasonable doubt,” United States v. Price, 418
F.3d 771, 786 (7th Cir. 2005); the sentence, therefore, violated Mr. Davison’s Sixth
Amendment rights, see United States v. Booker, 125 S. Ct. 738 (2005). To determine
whether Mr. Davison’s sentence constituted plain error, we ordered a limited remand
pursuant to Paladino v. United States, 401 F.3d 471 (7th Cir. 2005), to allow the
district court to inform this court whether it would have imposed a different sentence
on Mr. Davison had the court understood the Guidelines to be advisory.

      In accordance with the remand order, the district court requested statements
from the parties concerning the propriety of the sentence. After considering these
submissions, the district court advised us accordingly:

      Considering the record as it stands and the argument of counsel based on that
      record in light of the sentencing criteria under § 3553(a), and with the
      knowledge that the Guidelines are merely advisory, the court believes that the
      sentences imposed were reasonable, appropriate, and sufficient, but not greater
      than necessary, to comply with the sentencing purposes set out in § 3553(a)(2).
      Thus, were the court to resentence defendants now, it would impose the same
      sentences.

Opinion and Statement on Limited Remand as to Resentencing at 3.

                                          II

       Booker instructs us to review the district court’s sentencing determination for
reasonableness. Booker, 125 S. Ct. at 767. However, Booker also anticipates that, in
arriving at a sentence, district courts will continue to look to the Guidelines in
reaching appropriate sentences. See id. We have recognized that “[t]he Guidelines
remain an essential tool in creating a fair and uniform sentencing regime across the
country.” United States v. Mykytuik, 415 F.3d 606, 608 (7th Cir. 2005). Thus, “any
sentence that is properly calculated under the Guidelines is entitled to a rebuttable
presumption of reasonableness.” Id. Under this deferential standard, a defendant
“can rebut this presumption only by demonstrating that his or her sentence is
No. 03-3884                                                                        Page 3

unreasonable when measured against the factors set forth in [28 U.S.C. ] § 3553(a).”
Id. Theoretically, a sentence within the applicable guideline range can be
unreasonable, but we have recognized that “it will be a rare” occurrence. Id.

        In the present case, Mr. Davison concedes that the district court’s “decision
that it would impose the same sentence . . . has essentially snuffed out the Sixth
Amendment Booker issue . . . .” Appellant/Defendant William Davison’s Paladino
Memorandum at 4. Mr. Davison therefore asks this court to address other challenges,
pertaining to his sentence, that he raised in his initial briefing to this court.1 We turn
to those issues now.

      Mr. Davison first argues that, because the relevant conduct attributed to him at
sentencing resulted in such a great increase in sentencing range, the Government
should be put to a higher burden of proof. Pointing to the decisions of the Third
Circuit in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), and of this court
in United States v. Boos, 329 F.3d 907, 909 (7th Cir. 2003), he submits that, when “a
sentencing increase [is] so great that the sentencing hearing can fairly be
characterized as a tail which wags the dog of the substantive offense,” a higher
standard of proof than preponderance of the evidence is necessary to meet the
requirements of due process.

       We never explicitly have adopted a higher standard than preponderance of the
evidence for sentencing determinations, and our case law has not been consistent with
respect to whether a higher burden of proof should be imposed. See Boos, 329 F.3d at
910 (comparing cases). In Boos, we did not have to reach the issue “because the
evidence against Boos support[ed] a finding of guilt even under a clear and convincing
evidence standard, making the choice of standard irrelevant.” Id.

        The same is true here. The evidence presented at Mr. Davison’s sentencing is
sufficient to conclude that, not only is it more likely than not, but it is also highly
probable that Mr. Davison personally distributed over 1.5 kilograms of crack cocaine.
At Mr. Davison’s sentencing, Troy Miller, a fellow drug dealer with Mr. Davison in the
Concord area of Gary, Indiana, testified that from the summer of 1999 to the summer
of 2001, Mr. Davison sold approximately one ounce (or 28 grams) of cocaine per week,
for a total of almost 3 kilograms. See Sentencing Transcript (October 23, 2003) at 15-
19. Both the quantity of Mr. Davison’s sales, as well as the length of time that he was
selling, were corroborated by confidential informants; the statements of these


      1  Our Paladino remand made it unnecessary for us to address these claims
when Mr. Davison previously was before this court.
No. 03-3884                                                                       Page 4

individuals were introduced through the testimony Officer Bradley A. Bookwalter of
the Federal Bureau of Investigation. Id. at 53-58. Indeed, highly credible evidence
introduced at Mr. Davison’s trial established that he was selling crack cocaine as early
as the summer of 1997. Consequently, it is not only likely, but highly probable, that
Mr. Davison distributed in excess of 1.5 kilograms of crack cocaine.

        Mr. Davison also submits that the evidence on which the court relied is
inherently unreliable because it is based, in part, on witness statements as opposed to
live testimony. However, this court previously has “allowed written summaries of an
agent’s interviews with witnesses and the defendant to be used at sentencing, . . . as
well as an agent’s testimony based on police reports and other forms of out-of-court
testimony.” United States v. Szakacs, 212 F.3d 344, 352 (7th Cir. 2000) (citations
omitted). The statements offered to support Mr. Davison’s sentence were internally
consistent, were consistent with the live testimony offered by Miller at Mr. Davison’s
sentencing, and were consistent with the testimony offered at trial concerning Mr.
Davison’s sales of crack cocaine. The district court therefore did not err in relying on
this evidence.


                                     Conclusion

       For the foregoing reasons, the sentence of 360 months’ imprisonment imposed
by the district court is affirmed.

                                                                            AFFIRMED
