                     NONPRECEDENTIAL DISPOSITION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 December 12, 2007
                            Decided December 20, 2007

                                      Before

                   Hon. WILLIAM J. BAUER, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 07-1918

UNITED STATES OF AMERICA,                      Appeal from the United States
         Plaintiff-Appellee,                   District Court for the Western
                                               District of Wisconsin
              v.
                                               No. 06-CR-189-S-01
DAVID L. FRANKLIN,
           Defendant-Appellant.                John C. Shabaz,
                                               Judge.

                                    ORDER

       David Franklin pleaded guilty to possessing with intent to distribute crack
cocaine, see 21 U.S.C. § 841(a)(1), and because of his prior convictions and the
amount of crack, the district court sentenced him to 295 months’ imprisonment, see
id. §§ 841(b)(1)(A), 851. On appeal Franklin argues that (1) this court’s decision in
United States v. Miller, 450 F.3d 270 (7th Cir. 2006), has created a de facto
mandatory sentencing guidelines scheme, (2) his prison sentence is unconstitutional
because aggravating factors that were neither proved beyond a reasonable doubt
nor tried to a jury enhanced it, (3) his sentence is greater than necessary to comply
with the purposes of federal sentencing and is thus unreasonable, and (4) the
presumption of reasonableness given to a within-guidelines sentence conflicts with
both the Sixth Amendment and 18 U.S.C. § 3553(a). First, Franklin misreads
No. 07-1918                                                                    Page 2

Miller, which specifies that the guidelines are advisory, not mandatory. Next,
because the guidelines are not mandatory, no constitutional problems arise from the
district judge’s factfinding at sentencing. Finally, as the Supreme Court made clear
in United States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 127 S. Ct.
2456 (2007), district courts are required to consult the guidelines and the § 3553(a)
factors when fashioning a sentence and, once the district court has done so,
appellate courts are permitted to presume that a sentence with a properly
calculated guidelines range is reasonable. Because the district court appropriately
sentenced Franklin, we affirm.

                                  I. Background

       Franklin and his associate, Gregory Williams, had been transporting several
kilograms of powder cocaine at a time from Chicago, Illinois, to Madison, Wisconsin.
Once the cocaine arrived in Madison, Franklin and Williams converted it into crack
and sold it to customers. In September 2006 a confidential informant led detectives
to Williams, and after his arrest Williams implicated Franklin. After obtaining a
warrant, officers searched Franklin’s home and vehicle, found both powder and
crack cocaine, and arrested him.

       In October 2006 Franklin was charged under § 841(a)(1), and two months
later the government filed information under 21 U.S.C. § 851 that, no matter the
drug quantity, would raise the statutory maximum prison term to 30 years or more
because of Franklin’s prior conviction for a felony drug offense. In January 2007
Franklin pleaded guilty. The probation officer estimated Franklin’s relevant
conduct at roughly 21,250 kilograms of marijuana equivalent, which would have
resulted in a base offense level of 36 under the guideline for drug offenses. See
U.S.S.G. § 2D1.1(c)(2) (2006). But Franklin also qualified as a career offender
because of his prior convictions, so instead the probation officer recommended a
base offense level of 37. See U.S.S.G. § 4B1.1(b)(A) (2006). The government moved
for a three-level reduction for acceptance of responsibility, which reduced his total
offense level to 34. Franklin’s criminal history category was VI, yielding a
guidelines imprisonment range of between 262 and 327 months.

       At sentencing Franklin agreed that the guidelines range was properly
calculated, but he requested a sentence of 240 months’ imprisonment (the statutory
minimum) on the grounds that (1) he was an older offender—49 years old at the
time of sentencing—and would therefore be less likely to reoffend, (2) the goals of
deterrence, retribution, and rehabilitation could be achieved by a sentence below
the guidelines range, and (3) although his criminal history included battery and
drug offenses, among others, he had not been imprisoned previously. The district
court first rejected Franklin’s assertion that his age favored a lower sentence
because the first of Franklin’s sixteen prior convictions occurred at age 31. The
No. 07-1918                                                                     Page 3

court then concluded that a sentence in the middle of the guidelines range was
“reasonable and necessary.” The district judge specifically mentioned that a
sentence in the middle of the range was

      absolutely required to keep this person incapacitated for as long as the
      law will reasonably allow and allow him to participate in
      rehabilitation, allow him to participate in substance abuse treatment if
      he wishes . . . [T]he sentence at the middle as previously stated is
      reasonable and necessary to hold him accountable for his serious
      conduct, it’s to serve as a deterrent, it’s to protect the community from
      further criminality on his part and to achieve parity with sentences of
      similarly situated defendants.

Franklin was sentenced to 295 months’ imprisonment.

                                    II. Analysis

       On appeal Franklin first argues that our decision in Miller “eviscerates
Booker and reestablishes the status quo by merely inserting the word advisory
before the words sentencing guidelines, creating a judicial fiction that the
Constitution is respected, that the Supreme Court’s holding in Booker is respected,
and that constitutional guarantees under the Sixth and Fourteenth Amendments
are respected.” This argument is frivolous. In Miller we explained that, after
calculating the relevant advisory guidelines range, a district judge has discretion to
impose a sentence outside of the range, depending on the specific facts of the case.
But we emphasized that district courts are not at liberty to disregard legislative
choices and that differing sentences that are caused by legal rules, such as the
existence of fast-track programs in some districts, cannot be said to create
unwarranted disparities. See id. at 275-76. Franklin asserts that Miller holds
“that all sentences within the guideline range are reasonable,” but he simply
misunderstands the opinion.

       Franklin, citing the “‘bright-line rule announced in Apprendi,’” next argues
that his sentence is unconstitutional because it was enhanced by “aggravating
factors” that were not proved beyond a reasonable doubt or found by a jury. This
contention is equally frivolous. To the extent that Franklin alludes to his prior
convictions, the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), has never
applied to prior convictions. See Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998); Julian v. Bartley, 495 F.3d 487, 496-97 (7th Cir. 2007); United States
v. Glover, 479 F.3d 511, 522 (7th Cir. 2007). As for the guidelines, they are advisory
only, and so judicial factfinding at sentencing does not raise constitutional concerns.
See United States v. Wilson, 502 F.3d 718, 721 (7th Cir. 2007); United States v.
White, 443 F.3d 582, 592 (7th Cir. 2006).
No. 07-1918                                                                   Page 4

       Franklin also argues that the district court rejected his invocation of the
“parsimony provision” of § 3553(a), which states that “[t]he court shall impose a
sentence sufficient, but not greater than necessary,” to comply with the goals of
sentencing. We review sentences imposed by the district court for reasonableness.
See United States v. Dale, 498 F.3d 604, 608 (7th Cir. 2007); United States v. Jung,
473 F.3d 837, 844-45 (7th Cir. 2007). A sentence that is reasonable is entirely
consistent with the parsimony provision. See United States v. Ministro-Tapia, 470
F.3d 137, 141-42 (2d Cir. 2006). Here the district court focused primarily on the
seriousness of this offense, the need to incapacitate Franklin, and its desire to
protect the community from him. See 18 U.S.C. § 3553(a)(2)(A), (C). Franklin
claims that his sentence is unreasonable because “it was not imposed as a result of
the district court’s assessment of the relevant factors and determination of the
minimally adequate sentence,” but the record belies this argument.

       Franklin’s final argument is that the presumption of reasonableness given to
a within-guidelines sentence conflicts with both the Sixth Amendment and
§ 3553(a). The Supreme Court’s decision in Rita forecloses this claim. Franklin
filed his opening brief roughly two weeks before Rita was decided, but in his reply
brief he did not acknowledge Rita. This was an error.
                                                                        AFFIRMED.
