                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4230
UNITED STATES     OF   AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

STEVEN J. DELLA ROSE,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 02 CR 466—David H. Coar, Judge.
                          ____________
                       JANUARY 25, 2006
                         ____________


  Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. This case returns to us follow-
ing a remand pursuant to United States v. Paladino, 401
F.3d 471 (7th Cir.), cert. denied, 126 S. Ct. 106 (2005). See
United States v. Della Rose, 403 F.3d 891, 907-08 (7th Cir.
2005). For the following reasons, we conclude that no
plain error occurred in Della Rose’s sentencing and that his
sentence is reasonable.
  When Della Rose was sentenced in December 2003 for
conspiracy to commit mail fraud, the Supreme Court had
not yet issued its decision in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), and so the district court
treated the United States Sentencing Guidelines as binding.
2                                                No. 03-4230

In light of Booker, which remedied the Sixth Amendment
problem posed by the Sentencing Guidelines by severing
and excising the statutory provision compelling courts to
follow the Guidelines, that was error. Because Della Rose
did not make a Booker-type objection at the time of sentenc-
ing, however, the error in treating the Guidelines as
binding may be recognized only if it rises to the level of
plain error. See id., 125 S. Ct. at 769. So that we could
determine whether Della Rose was prejudiced by the error,
we asked the district court to consider on remand whether
it would be inclined to sentence Della Rose more leniently
knowing that the Guidelines are advisory rather than
mandatory. Della Rose, 403 F.3d at 907-08; see Paladino,
401 F.3d at 483-84. The district court, after considering the
position papers filed by both parties, issued a brief order
indicating that it would have imposed the same sentence. R.
171.
  Della Rose initially argues that the district court failed to
take the steps that were necessary given the circumstances
of this case to resolve the Paladino inquiry. Della Rose
asked the court on remand to conduct a hearing at which he
could present evidence and make arguments regarding such
factors as the nature and circumstances of his offense and
his personal characteristics. These are the kinds of open-
ended sentencing criteria that are identified as relevant in
18 U.S.C. § 3553(a) and which have taken on greater import
in the wake of Booker. See United States v. Dean, 414 F.3d
725, 728 (7th Cir. 2005). Implicitly, the district court denied
that request when it issued its order indicating that it
would not have sentenced Della Rose differently knowing
that the Guidelines are advisory. Della Rose suggests that
the court could not reasonably decide whether it might have
sentenced him differently without granting him the type of
hearing that he asked for and that the court was, at the
least, wrong to deny his request without explanation.
No. 03-4230                                                  3

  In our view, however, the district court was neither
obliged to hold a hearing nor to offer reasons for its decision
not to do so. In light of Booker and its transformation of the
federal sentencing regime, the district court understood
that it would have much broader discretion in sentencing
Della Rose today than it did in 2003. Through the parties’
written submissions, the court also was aware of the section
3553(a) sentencing factors that the parties believed were
potentially most relevant to how the court might exercise
that discretion. These submissions provided the court with
information sufficient to enable the court to answer the
Paladino inquiry. The district judge, after all, had presided
over Della Rose’s trial and sentenced him; the judge was,
therefore, intimately familiar with both the facts underlying
the conviction as well as Della Rose’s background.
  As Della Rose points out, a number of district judges
in this circuit have elected to hold hearings before decid-
ing whether or not they would be inclined to sentence
particular defendants differently in light of Booker. We
do not doubt that district courts have the discretion,
when confronted with a Paladino remand, to convene a
hearing in order to take additional evidence, entertain oral
argument, or to afford the defendant a new allocution. But
Paladino does not suggest that the district court is obliged
to hold such a hearing whenever a defendant requests it; on
the contrary, Paladino suggests that so long as the parties
are given the opportunity to make written arguments as to
the impact of Booker on the judge’s sentencing decision, a
hearing is not necessarily required. 401 F.3d at 484.
  Even if we assume for the sake of argument that a
Paladino remand might necessitate a hearing in some
cases, this is not one of them. This is not a case, for exam-
ple, in which the defendant submitted a proffer indicating
that he was prepared to present testimony regarding some
aspect of his offense or his personal history which (if the
testimony were credited) might be so compelling as to rebut
4                                                No. 03-4230

the presumption of reasonableness that attaches to a
sentence that is within the Guidelines range. Cf. United
States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir. 2005)
(defendant proffered evidence of significant psychiatric
problems). Della Rose’s written submission to the district
court alluded to several circumstances that he believed
warranted a lesser sentence than the one the court had
imposed prior to Booker: (1) the fraud in this case involved
a relatively modest sum of money ($64,000), (2) Della Rose
had made positive contributions to his community; and (3)
he had lost his law license. R. 161 ¶¶ 6, 7, 10. None of these
amounts to an extraordinary circumstance; on the contrary,
they are of a kind with the sorts of mitigating factors
routinely argued to sentencing judges. After Booker,
certainly, a federal judge may give these factors much more
weight than the Guidelines themselves would have allowed.
But for the same reasons we conclude below that these
circumstances do not call into question the reasonableness
of Della Rose’s sentence, they do not call into doubt the
district court’s decision to resolve the Paladino remand
without holding a hearing.
  The district judge’s answer to the Paladino inquiry
reveals that Della Rose’s substantial rights were not
affected by the error in treating the Guidelines as bind-
ing rather than advisory. See Fed. R. Crim. P. 52(b). With
the benefit of the parties’ input, and on consideration of the
sentencing factors set forth in 18 U.S.C. § 3553(a), the
district judge concluded that he would not have imposed a
different sentence even had he known that the Guide-
lines did not bind him. R. 171. Because the error in the
court’s treatment of the Guidelines did not make him
“worse off,” United States v. Lee, 399 F.3d 864, 866 (7th Cir.
2005), it does not constitute plain error that warrants relief
on appeal. See Paladino, 401 F.3d at 484. All that remains
is for us to determine whether the sentence imposed is
reasonable. Id.
No. 03-4230                                                 5

  Della Rose’s sentence, which is within (albeit at the top
of) the Guidelines range, is presumptively reasonable.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). The defendant bears the burden of establishing
that his sentence is unreasonable in light of the sentenc-
ing factors set forth in section 3553(a). Id. Della Rose has
not carried this burden.
  Della Rose suggests that his sentence is out of propor-
tion to the money at stake in the underlying fraud, pointing
out that, under the Guidelines, a sentence of 41 months is
commensurate with a fraud involving between $400,000 to
$1 million, see U.S.S.G. § 2B1.1(b)(1)(H) (Nov. 2003), a sum
far greater than the $64,000 of which he defrauded his
client. But focusing solely on the amount of money involved
in the fraud, which by itself would have called for a much
lower offense level and sentencing range, ignores the
enhancements to Della Rose’s offense level triggered by
other aspects of his fraud. These include Della Rose’s
attempt to obstruct justice by soliciting false testimony from
an acquaintance, see § 3C1.1, his decision to defraud a
client who was unusually vulnerable given his history of
drug abuse and psychiatric problems, see § 3A1.1(b)(1), the
abuse of trust inherent in the attorney-client relationship,
see § 3B1.3, and his leadership role in the conspiracy, see
3B1.1(c). Those enhancements would still apply in the wake
of Booker. See, e.g., Dean, 414 F.3d at 727. The enhance-
ments demonstrate the ways in which Della Rose’s criminal
conduct was more serious than if he had engaged in a
simple theft of $64,000 from someone at arms-length from
him, and why it is misleading to suggest that he was
sentenced as if he had stolen ten times that amount.
   Della Rose goes on to contend that the loss of his law
license, the restitution he has made to his victim, and the
fact that “[h]e has no criminal record beyond this offense of
opportunity” together demonstrate that a lesser sentence
would suffice for purposes of punishment and deterrence.
6                                                 No. 03-4230

Della Rose Mem. at 7. We may assume that Della Rose is
unlikely to commit another crime and that a prison term of
41 months is not strictly necessary to ensure that he does
not do so. Still, the crime of which Della Rose was convicted
amounts to a profound abuse of his fiduciary responsibili-
ties as an attorney, and one can reasonably see a sentence
at the top of the Guidelines range as appropriate to account
for the gravity of Della Rose’s offense and to deter others
from attempting similar frauds. Although Della Rose
characterizes the loss of his license to practice law as
significant punishment in and of itself, it is really the
forfeiture of a professional privilege that arguably serves
prophylactic more than punitive ends. See Hudson v. United
States, 522 U.S. 93, 104-05, 118 S. Ct. 488, 495-96 (1997)
(occupational debarment does not constitute criminal
punishment for double jeopardy purposes). Della Rose’s lack
of a prior criminal record was, of course, accounted for in
his Criminal History category.
  Finally, Della Rose has submitted letters indicating
that he has had a positive impact on depressed neighbor-
hoods in Chicago by buying and improving derelict prop-
erties. His accomplishments in that regard may, as his
attorneys submit, “attest to his trustworthiness and fair
dealing, in stark contrast to the crime here . . . .” Della Rose
Mem. at 7. But they are by no means out of the ordinary.
Defendants accused of comparable frauds often have
impressive records of civic and philanthropic accomplish-
ments. These good deeds in no way lessen the harm suf-
fered by the victims of their crimes, and in some ways they
render the crimes themselves all the more puzzling and
deplorable. A sentencing judge surely may elect to treat a
defendant’s contributions to his community as evidence of
his redeeming qualities and as a ground for a less severe
sentence, but such contributions do little to establish that
a sentence within the Guidelines range is unreasonable.
No. 03-4230                                               7

  The evidence in this case indicates that Della Rose saw an
opportunity to take advantage of a disturbed
and vulnerable client, recruited others into a scheme to
defraud that client, and when the fraud came to light,
endeavored to hide his crime and even to obstruct justice.
This was in no sense a minor crime. The length of the
prison term imposed is entirely reasonable, and we there-
fore AFFIRM Della Rose’s sentence.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-25-06
