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

Nos. 03-2345 & 03-2915
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                  v.

CLARENCE HANKTON and
GREGORY DAVIS,
                                      Defendants-Appellants.
                           ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 01 CR 1—Charles R. Norgle, Sr., Judge.
                           ____________
     SUBMITTED MAY 8, 2006—DECIDED SEPTEMBER 7, 2006
                       ____________


    Before COFFEY, MANION, AND WILLIAMS, Circuit Judges.
  COFFEY, Circuit Judge. In November of 2002, Clarence
Hankton and Gregory Davis each pled guilty to possessing,
with the intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1).1 At sentencing the government intro-
duced a plethora of evidence concerning the drug and
gang activities of both defendants, resulting in the dis-
trict judge sentencing Hankton to a term of 300 months and
Davis to 210 months. Both men appealed, see United States


1
  In the case of Hankton, cocaine base, commonly known as
“crack” cocaine.
2                                      Nos. 03-2345 & 03-2915

v. Hankton, 432 F.3d 799 (7th Cir. 2005), and while we
affirmed each of their sentences, we remanded their cases
to the district court in accordance with United States v.
Paladino, 401 F.3d 471, 481 (7th Cir. 2005). The district
judge in replying to the remand stated that he would have
given Hankton and Davis the same sentences he had
imposed previously in spite of the newly determined
advisory nature of the Guidelines. United States v. Hankton
and Davis, No. 01-CR-1 (April 21, 2006); see United States
v. Booker, 125 S.Ct. 738, 757 (2005). We invited each of the
defendants respectively to file briefs concerning the reason-
ableness of the sentences, however, only Davis and the
government responded. After review of the their
arguments,2 we conclude that the sentences of each of the
defendants-appellants’ are reasonable. See United States v.
Newsome, 428 F.3d 685, 686 (7th Cir. 2005); Paladino, 401
F.3d 484.
  Our review of a district judge’s sentencing determina-
tion is deferential, and we refuse to substitute our judgment
for that of the sentencing judge when dealing with the
question of what sentence should have been imposed upon
a defendant. See United States v. Williams, 425 F.3d 478,
481 (7th Cir. 2005). In addition, a sentence that is imposed
within a properly calculated Guidelines range is presump-
tively reasonable. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). An appellant may rebut the
presumption of reasonableness by demonstrating that his
sentence would be unreasonable when measured against
the factors set forth in 18 U.S.C. § 3553(a), such as the
“need for the sentence imposed—(A) to reflect the serious-
ness of the offense, to promote respect for the law, and to
provide just punishment for the offense[s]; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the



2
    All except for Hankton who did not respond.
Nos. 03-2345 & 03-2915                                         3

public from further crimes of the defendant[s]; and (D) to
provide the defendant[s] with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.” Id. (citing Booker,
543 U.S. at 766).


     I. REASONABLENESS OF HANKTON’S SENTENCE
  In our disposition of Hankton’s direct appeal, we con-
cluded that the sentencing judge applied the proper Guide-
line range in calculating Hankton’s sentence, see Hankton,
432 F.3d at 790-97, and accordingly the sentence imposed
is considered presumptively reasonable. See Hankton, 432
F.3d at 789-97; Mykytiuk, 415 F.3d at 608. Hankton
declined our invitation to delineate why the sentence he
received was unreasonable when measured against the
§ 3553(a) factors. Indeed, the trial judge referred to a
number of the factors enumerated in § 3553(a) as integral
to his decision not to alter Hankton’s previously imposed
sentence,3 i.e., even after considering those factors, he
stated he would have given Hankton the same sentence had
he understood the Guidelines to be advisory.
  Thus, since the sentencing judge has advised us that he
would have imposed the same sentence post-Booker, and
due to the fact that Hankton has failed to rebut the pre-
sumption that his sentence is reasonable, he has failed to
establish plain error. See id. (citing Johnson v. United
States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d
718 (1997)).


3
  Specifically, the trial judge noted Hankton’s top position as
the “King of Kings” in “a violent Chicago street gang heavily
involved in the purchase and sale of cocaine.” This, the judge
reasoned, warranted a 300-month sentence in order to “reflect the
seriousness of Hankton’s crimes, promote respect for the law, and
protect the public from future crimes [by] Hankton.”
4                                   Nos. 03-2345 & 03-2915

       II. REASONABLENESS OF DAVIS’S SENTENCE
  Unlike Hankton, Davis has responded to our invitation to
explain his argument as to why he contends his sentence is
unreasonable. In his brief, Davis presents a number of
claims, all of which are without merit.
  Davis initially avers that the district court “misunder-
stood its authority under Booker.” He attempts to support
his bold and unsubstantiated assertion by citing the
sentencing judge’s statement that he failed to “overcome the
rebuttable presumption that his sentence is reasonable.”
However, this court specifically held in United States v.
Mykytiuk, that “any sentence that is properly calculated
under the Guidelines is entitled to a rebuttable presump-
tion of reasonableness.” 415 F.3d at 608. It is interesting to
note that the sentencing judge properly cited Mykytiuk in
reaching his conclusion that Davis had neither established
that his sentence had been improperly calculated nor that
the presumption of reasonableness had been overcome. It is
clear that the district court’s analysis was directly in line
with our holding in Mykytiuk. See id.
  Davis attempts to bolster his argument, arguing that
Mykytiuk should not be considered binding on a sentencing
court, stating that, in Mykytiuk “this court only decided that
a Guidelines sentence is presumed to meet the appellate
standard for review for reasonableness.” However, the
presumption that a correctly calculated Guidelines sentence
is reasonable not only applies to the appellate standard of
reasonableness review, but also serves as a benchmark for
trial judges in evaluating whether or not a Guidelines
sentence is appropriate. It is only when the defendant
provides cogent reasons for a non-Guidelines sentence
under 18 U.S.C. § 3553(a) that a sentencing judge need
consider such a sentence. See Dean, 414 F.3d 729-30.
  Next, Davis claims that the district court “refused to
consider [his] argument that the 18 U.S.C. § 3553[(a)]
factors support a sentence outside the career offender
Nos. 03-2345 & 03-2915                                      5

Guideline range.” We disagree. Even a cursory review of the
sentencing judge’s order on remand, and the findings
therein, reveals that the court thoroughly considered the
§ 3553(a) factors and, in fact, did more than was required
of him under the circumstances. See United States v.
Hankton, No. 01-CR-1, at *8-9 (N.D. Ill. Apr. 21, 2006);
United States v. George, 403 F.3d 470, 472-73 (7th Cir.
2005) (stating that: “Judges need not rehearse on the record
all of the considerations that 18 U.S.C. 3553(a) lists; it is
enough to calculate the range accurately and explain why
. . . the defendant deserves more or less.”). What’s more, to
the extent that Davis’s argument is nothing more than a
collateral attack on his sentence, it fails; for we previously
affirmed the validity of his sentence under the Guidelines
over a year ago. See Hankton, 432 F.3d at 789-96.
  In an equally unpersuasive argument, Davis avers that
the district court “incorrectly found that it lacked the
authority to impose a non-Guidelines sentence on the basis
of the disparity between sentences for crack and powder
cocaine.” As an initial matter, we note that Davis intention-
ally misinterprets the district court’s order of remand when
he states that the court “found that it lacked authority to
impose a non-Guidelines sentence.” Instead of concluding
that it lacked authority to consider a non-Guidelines
sentence, the district court—relying on our decision in
United States v. Gipson, 425 F.3d 335, (7th Cir. 2005),
considered and rejected Davis’s arguments as “unavailing.”
In addition, to the extent that Davis argues either that the
sentencing judge erred in calculating his sentencing range
or should have given him a non-Guidelines sentence based
on the sentencing disparity between powder and crack
cocaine, this argument has been barred by this court’s
recent decision in United States v. Miller, 450 F.3d 270,
274-76 (7th Cir. 2006). In Miller we held that a district
judge is required to abide by the 100-to-1 crack cocaine to
cocaine powder ratio when applying the Sentencing Guide-
6                                      Nos. 03-2345 & 03-2915

lines to a defendant’s conduct. Id. at 275; (following United
States v. Pho, 433 F.3d 53 (1st Cir. 2006); United States v.
Eura, 440 F.3d 625 (4th Cir. 2006)). In other words, this
court made clear in Miller that a sentencing judge may not
recalculate a Guidelines sentence or impose a lesser, non-
Guidelines sentence based on his opinion that the statutory
and/or Guidelines disparity between punishments for crack
cocaine and powder cocaine is unjust or unwarranted. See
id. at 276 (holding that: “A sentence within a properly
ascertained range . . . cannot be treated as unreasonable by
reference to 3553(a)(6)”). Accordingly, Davis’s argument
must fail, for Judge Norgle acted in anticipation of and
furthermore in accordance with Miller when he categori-
cally refused to consider Davis’s argument in favor a non-
Guidelines sentence based solely on the disparity between
crack cocaine and cocaine powder in the Guidelines.4
  In a final attempt to challenge his sentence as imposed,
Davis states that the district court should have issued a
non-Guidelines sentence based on the factors enumerated
in 3553(a).5 The main thrust of Davis’s argument concern



4
  In a tag-along argument, Davis claims that the district court
incorrectly “relied on plea agreements from some of Davis’ former
co-defendants to support its finding that Davis was responsible for
between 50 and 100 grams of crack cocaine and that he was the
manager or supervisor of a criminal activity.” In our decision in
Davis’s direct appeal we addressed precisely this argument and
held that the plea agreements, along with the plethora of other
evidence establishing guilt adduced at sentencing were enough to
support the sentence the court imposed on Davis. See Hankton,
435 F.3d 792-93. The district judge’s decision not to re-visit this
issue was proper and we decline Davis’s invitation to do so here.
5
   As part of his argument, Davis advances the ridiculous notion
that the district judge, by applying the rebuttable presump-
tion in Mykytiuk, considered the Guidelines to be mandatory.
                                                   (continued...)
Nos. 03-2345 & 03-2915                                          7

ing 3553(a) is that the district court’s sentencing determina-
tion should be found unreasonable due to the fact that his
crimes were “the result of his addiction to marijuana and
alcohol.” The problem is that mere evidence of a pre-
existing drug and alcohol addiction, without more, falls far
short of rendering a properly calculated Guidelines sentence
unreasonable. Were this not the case, multitudes of crimi-
nal defendants who had either used or abused drugs and
alcohol and who failed to receive a reduction in sentence
under the Guidelines could and would in all probability
challenge his sentence as unreasonable on those grounds
alone. This most assuredly is not what the Congress had in
mind when they passed 18 U.S.C. § 3553(a). The same can
be said for Davis’s other § 3553(a) arguments as well. He
claims he was, at times, “responsible, held legitimate
employment, . . . tried to help his friends and family . . .
[and] was a good father when he was able to be there for his
children.” These arguments likewise do nothing to overcome
the fact that Davis stands convicted of a most serious
criminal drug offense. As the sentencing judge noted, “Davis
attained the rank of ‘Sultan Supreme’ in the [Mickey
Cobras gang], and participated heavily in the purchase and
sale of crack cocaine.” We agree with the district court’s
conclusion that Davis’s sentence properly “reflects the
seriousness of [his] offense, promotes respect for the law,
and protects the public from further crimes.”




5
  (...continued)
Suffice it to say, the district court did no such thing. Also,
while we see no reason to expound on our holding in Mykytiuk, we
dismiss out of hand Davis’s assertion in his brief that Mykytiuk
“sends the message that a sentence within the Guidelines will
never be reversed . . . .” Our holding in Mykytiuk implies no
such thing. A “rebuttable presumption” is just that, “rebuttable.”
8                                    Nos. 03-2345 & 03-2915

                     III. CONCLUSION
  In light of the fact that the sentencing judge stated that
he would have imposed the same sentence post-Booker
and because we are of the opinion that Hankton’s and
Davis’s sentences are reasonable, we hold that each of the
defendants has failed to establish plain error. See id. (citing
Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct.
1544, 137 L.Ed.2d 718 (1997)). We AFFIRM the judgment of
the district court as to each of the defendants-appellants.

A true Copy:
       Teste:

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




                    USCA-02-C-0072—9-7-06
