                      NONPRECEDENTIAL DISPOSITION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 July 10, 2007
                                Decided July 25, 2007

                                        Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. RICHARD D. CUDAHY, Circuit Judge

                    Hon. KENNETH F. RIPPLE, Circuit Judge

No. 07-1807

UNITED STATES OF AMERICA,                        Appeal from the United States
    Plaintiff-Appellee,                          District Court for the Eastern
                                                 District of Wisconsin.
      v.
                                                 No. 06 CR 244
JANICE CLAYBROOKS,
     Defendant-Appellant.                        J. P. Stadtmueller,
                                                 Judge

                                      ORDER

       Janice Claybrooks pleaded guilty to one count of mail fraud after she was caught
double-cashing disability checks issued to her as representative of her four children.
In addition to ordering her to pay $7,739.87 in restitution, the district court sentenced
her to 12 months and one day of imprisonment and three years of supervised release.
On appeal, Claybrooks argues that her prison sentence creates an unwarranted
disparity in violation of 18 U.S.C. § 3553(a)(6) because it is longer than the sentences
received by a number of “similarly situated” defendants convicted as part of the same
crackdown on Social Security fraud. Because Claybrooks’s criminal history accounts
for the length of her prison sentence, and no unwarranted disparity is evident, we
affirm the sentence.
No. 07-1807                                                                      Page 2

                                           I.

       Claybrooks, a 37-year-old mother of four, was the designated payee for her
childrens’ Supplemental Security Income benefits. All four children received monthly
benefits due to learning disabilities. On 25 separate occasions between 1997 and 2005,
Claybrooks falsely reported to the Social Security Administration (SSA) that she
needed a replacement check because she had not received a payment. She then cashed
both the original and replacement checks—a scheme known as “double negotiation.”
The SSA calculated losses totaling $11,927.77 as a result of Claybrooks’s conduct,
although it recouped a portion of that sum by deducting amounts from checks it issued
to Claybrooks’s children.

       In October 2006 a grand jury indicted Claybrooks for two counts of mail fraud,
18 U.S.C. § 1341, and one count of making false statements to the SSA, 42 U.S.C. §
1383(a)(2). She was arrested shortly thereafter, as were a number of other individuals
in the Milwaukee area as part of a sweep targeting fraud on the SSA. Claybrooks
entered into a written plea agreement with the government. She pleaded guilty to one
count of mail fraud based on one instance of double-cashing a check issued to her son
Raylonzo Woods in early 2003.

       At her sentencing hearing, Claybrooks agreed with the calculations in the
presentence investigation report that produced a Guidelines range of 12 to 18 months’
imprisonment based on her total offense level of nine and her Category IV criminal
history. But she asked for a sentence below the Guidelines—specifically, a sentence
of home detention or community confinement—based on her depression and history of
substance abuse, as well as her children’s need for extra care due to their disabilities.
The government declined to make a specific sentencing recommendation but suggested
that “a very long term of imprisonment” was not warranted. The government
acknowledged that “a couple of other defendants” convicted of similar crimes had been
sentenced to home detention in recent days, but it noted that Claybrooks’s case was
“obviously different” due to her criminal history. The district court imposed a prison
sentence of 12 months and one day, reasoning that Claybrooks, while “not public
enemy number one,” had a lengthy criminal history that included drug offenses and
writing bad checks.

                                           II.

       On appeal, Claybrooks primarily argues that her sentence is unreasonable
because it “creates an unwarranted disparity between Ms. Claybrooks and similarly
situated defendants.” Claybrooks also contends that her within-Guidelines prison
sentence should not be presumed reasonable because, she argues, a presumption of
reasonableness gives undue weight to the Guidelines and thus is inconsistent with
United States v. Booker, 543 U.S. 220 (2005).
No. 07-1807                                                                       Page 3

       Claybrooks’s challenge to our practice of presuming a sentence within a properly
calculated Guidelines range to be reasonable, see United States v. Mykytiuk, 415 F.3d
606 (7th Cir. 2005), is foreclosed by the Supreme Court’s recent decision in Rita v.
United States, No. 06-5754, 2007 WL 1772146, at *6 (U.S. June 21, 2007). The parties
agree that the Guidelines range is properly calculated, and Claybrooks’s sentence is
at the bottom of the range. Accordingly, we presume the sentence to be reasonable, but
she may rebut the presumption by showing that her sentence is unreasonably long in
light of specific factors under § 3553(a). See Mykytiuk, 415 F.3d at 608.

       The sole factor that Claybrooks points to as compelling a lower sentence is
§ 3553(a)(6), which requires a sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Claybrooks asserts that an unwarranted
disparity exists because, despite having a “similar” criminal history and amount of
loss, she received a harsher sentence than others convicted of the same conduct.

       As a preliminary matter, Claybrooks never raised § 3553(a)(6) in the district
court; indeed, she never mentioned the 18 similar defendants or the need to impose
comparable sentences. Counsel suggested at oral argument that disparities may not
be evident until after a defendant’s sentencing hearing. But in this case, the
government actually referred to “a couple” of similar defendants who had already been
sentenced, and still Claybrooks made no mention of § 3553(a)(6). She focused entirely
on her “history and characteristics,” 18 U.S.C. § 3553(a)(1), and her need for drug
treatment, id. § 3553(a)(2)(D). Thus Claybrooks forfeited the argument that
§ 3553(a)(6) compels a below-Guidelines sentence, see United States v. Vaughn, 433
F.3d 917, 926 n.14 (7th Cir. 2006), and we will review it only for plain error, see United
States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006).

       Claybrooks cannot establish plain error—or error at all—for a number of
reasons. First, we held in United States v. Boscarino, 437 F.3d 634 (7th Cir. 2007),
that a sentence within a properly calculated Guidelines range “cannot be treated as
unreasonable by reference to § 3553(a)(6).” Id. at 638; see United States v. Babul, 476
F.3d 498, 501-02 (7th Cir. 2007). In Boscarino, we rejected the argument that the
difference between the defendant’s sentence and that of his codefendant, who had
pleaded guilty and assisted the government, amounted to an unwarranted disparity.
See 437 F.3d at 638. Claybrooks contends, however, that Boscarino does not apply
because the disparity she points to is between her and 18 similar defendants who
received more lenient sentences for virtually identical crimes. Claybrooks’s case is
indeed factually distinguishable from Boscarino, and insofar as that decision makes
the point that § 3553(a)(6) does not require similar sentences for codefendants, it is not
relevant here.
No. 07-1807                                                                        Page 4

       However, in Boscarino we also highlighted the tension inherent in relying on
§ 3553(a)(6) as a justification for a below-Guidelines sentence; we noted that disparity
increases when district judges impose non-Guidelines sentences because the Guidelines
“are themselves designed to treat similar offenders similarly.” Id.; see Babul, 476 F.3d
at 501-02. Moreover, we made the point that only “unwarranted” sentencing
disparities are problematic and that valid reasons remain for sentencing similar
defendants differently. Boscarino, 437 F.3d at 638 (“[A] sentencing difference is not a
forbidden ‘disparity’ if it is justified by legitimate considerations.”); see United States
v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007) (“Sentencing differences attributable to
properly calculated sentencing ranges . . . cannot be considered unwarranted
disparities.”).

       Claybrooks therefore must establish that a disparity exists as a result of the
district court giving her a 12-month prison sentence and that it is unwarranted. She
does neither. First, no disparity is evident from the facts provided. For example, two
defendants received prison sentences of 15 and 27 months—both longer than the term
imposed on Claybrooks. And even the defendants who received home confinement, in
most cases for 120 or 180 days, did not get sentences that are all that much shorter
than Claybrooks’s. The limited criminal-history information Claybrooks provides also
reveals no disparity. She states that, of the defendants whose information she
obtained, two had criminal histories “similar” to hers—both Category III—and received
shorter sentences. But Claybrooks is in Category IV, albeit by just one point. More
importantly, the district judge emphasized her pattern of check fraud and her drug
offenses. The nature of the prior offenses, not just the quantity, influenced the decision
to impose a prison term, and so simply comparing criminal history categories is
unhelpful. See United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005).

        Even if Claybrooks is correct that a disparity exists, she cannot establish that
it is unwarranted because she does not provide enough information to allow for
meaningful comparison. She lists only the amount of “alleged fraud” in each case, and
in some cases she provides a criminal history score. But much more goes into the
Guidelines calculations and the ultimate selection of an appropriate sentence.
Claybrooks herself argued in the district court that individualized factors such as her
drug addiction, mental illness, and family situation compelled a lower sentence. But
she does not—and cannot—provide similar information about the other defendants to
whom she compares herself. In short, Claybrooks fails to account for the legitimate
variations that arise when sentences are based on individualized factors. See Newsom,
428 at 689 (“[O]ne needs to know more than the crime of conviction and the total length
of the sentence to evaluate disparities; the specific facts of the crimes and the
defendant's individual characteristics are also pertinent.”); United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005).
No. 07-1807                                                                     Page 5

                                         III.

      Claybrooks forfeited her principal argument because she did not ask the district
judge to impose a below-Guidelines sentence to avoid an unwarranted sentencing
disparity. And she has not established plain error because the information on which
she relies does not demonstrate the existence of a disparity, let alone an “unwarranted”
one. Accordingly, we AFFIRM the prison sentence.
