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

No. 06-1512
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

THOMAS P. VITRANO,
                                       Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
        No. 02-CR-199—Rudolph T. Randa, Chief Judge.
                       ____________
   ARGUED DECEMBER 6, 2006—DECIDED JULY 19, 2007
                  ____________


  Before POSNER, RIPPLE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. On August 8, 2003, Thomas
Vitrano pleaded guilty to one count of possessing a fire-
arm as a felon and one count of possessing a firearm while
subject to a domestic abuse injunction, both in violation of
18 U.S.C. § 922(g). The firearm at issue was a Remington
870 shotgun that Vitrano had taken with him to go duck
hunting. He was initially sentenced to 120 months’
imprisonment—the term that the district judge believed
was the statutory maximum—but the United States
appealed the sentence claiming that Vitrano should have
been classified a career offender under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). See United
States v. Vitrano, 405 F.3d 506, 507 (7th Cir. 2005)
2                                              No. 06-1512

(“Vitrano I”). We agreed with the government and re-
manded for re-sentencing. In light of Vitrano’s status as an
armed career criminal, his new guideline range on remand
was 235-293 months; the new statutory maximum to which
he was exposed was life in prison. The government pro-
duced evidence for the first time at his second sentencing
hearing showing that Vitrano was exceptionally violent
toward people, not just ducks. The judge, considering the
new evidence, re-sentenced Vitrano to 360 months’ im-
prisonment, 67 months above the advisory guideline range.
On appeal, Vitrano raises multiple challenges to his re-
sentencing proceedings. Finding no error, we affirm.


                             I
  The procedural background of the case is spelled out in
Vitrano I, for those who are interested; we see no need to
repeat it here. Each of Vitrano’s current claims on appeal
relates to the government’s introduction at his second
sentencing of damaging prior uncharged conduct that was
not before the district court the first time around. The
particular evidence to which Vitrano takes exception
reveals that he sent multiple functioning pipe bombs
disguised as a birthday present to his former girlfriend’s
house. The pipe-bomb incident technically bore no rela-
tion to the shotgun possession for which Vitrano pleaded
guilty (except that the government discovered the shotgun
during the course of its investigation of the pipe-bomb
incident), but the evidence at the second sentencing
hearing demonstrated that Vitrano was responsible for
them. Two police officers who investigated the offense
testified that the bombs were functioning and that some
of the parts contained in them were traceable to Vitrano.
The prosecution also presented statements by jailhouse
informants claiming that Vitrano had discussed with them
various details about the bombing, including certain facts
No. 06-1512                                              3

that the government posited Vitrano could have known
about only if he had actually carried out the plot.
  The government did not limit its new evidence to the
pipe-bomb incident. It also detailed numerous other epi-
sodes from Vitrano’s exceedingly violent past. It summa-
rized out-of-court statements by Vitrano’s mother, daugh-
ter, an ex-wife and multiple former girlfriends—includ-
ing Patricia Gerard, the recipient of the “birthday pres-
ent” pipe bombs—recounting harrowing acts of violence.
Vitrano’s first wife, for example, stated that he would
“continuously beat her,” that he broke her nose, jaw, and
ribs, and that at least once he threw what appeared to
be a lit pipe bomb at her. The other statements were
similarly disturbing; at least three women, including
Gerard, had obtained restraining orders against Vitrano.
The police officers who testified at sentencing—all
experienced—agreed that Vitrano was “one of the most
violent individuals [they had] encountered in [their]
career[s].”
  In imposing a sentence, the district judge explicitly
considered the factors outlined in 18 U.S.C. § 3553(a). The
court looked first at Vitrano’s extensive criminal history,
his prior drug use and mental instability, as well as his
demonstrated disrespect for authority. It concluded that
the government had demonstrated that Vitrano was the
person responsible for the pipe bombs left at Gerard’s
home, and then it considered the other evidence of
Vitrano’s violent past. See 18 U.S.C. § 3553(a)(1). It was
that factor, more than any others, that drove the court’s
decision to choose a sentence above the guideline range.
Vitrano challenges his new sentence on five grounds: he
argues first that the preponderance of the evidence
standard used at sentencing violates due process; second
that the district court erred by considering evidence that
was not “relevant” to the charged offense; third that the
4                                              No. 06-1512

court erroneously failed to make an explicit ruling on his
pre-sentence motion; fourth that the government’s use of
new damaging evidence at the second sentencing was
the product of vindictiveness; and finally, that the govern-
ment breached a promise not to use that evidence against
him at sentencing. We consider each argument in turn.


                            II
  Vitrano’s claim that facts found at sentencing must be
proven beyond a reasonable doubt is entirely without
merit, as we have consistently held, and as the Supreme
Court has recently underscored. See Rita v. United States,
127 S.Ct. 2456, 2466 (2007); see also United States v.
Dean, 414 F.3d 725, 730 (7th Cir. 2005); United States v.
Robinson, 435 F.3d 699, 701 (7th Cir. 2006). In light of
Rita, we consider this argument foreclosed.
  His second claim—that conduct considered by a district
court in imposing a sentence above the guideline range
must be “based on factors relevant to the offense of
conviction”—warrants only slightly more attention. He
maintains that only those incidents that are somehow
related to his use of a shotgun for duck hunting can be
considered by the district judge at sentencing. Since, in
his view, the uncharged allegations of violence toward
his ex-wife and girlfriends are “completely unrelated” to
his possession of a shotgun for hunting, it was improper
for the district judge to enhance his sentence based on
them.
  Vitrano is confusing those guideline provisions that
require the district judge to make certain factual findings
in calculating the applicable guideline range with the
factors that may be considered under § 3553(a) in choosing
the ultimate sentence. Although provisions in the guide-
lines such as U.S.S.G. 1B1.3(a)(2)—the “Relevant Conduct”
No. 06-1512                                                5

provision—allow a district judge to enhance a defendant’s
advisory guideline range only for conduct that is “part of
the same course of conduct or common scheme or plan as
the offense of conviction,” once the applicable range is
determined, the judge’s ability to choose which sentence to
impose is not so constrained. See United States v. Orozco-
Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006) (“Sentencing
post-[United States v.] Booker[, 543 U.S. 220 (2005)]
requires the sentencing judge to properly calculate the
advisory guidelines range in the same manner as before
Booker and then to make a discretionary decision whether
to sentence the defendant within the advisory range or
outside it in light of the very broadly stated sentencing
factors set forth in § 3553(a).”). 18 U.S.C. § 3661, entitled
“Use of information for sentencing,” states, “No limitation
shall be placed on the information concerning the back-
ground, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate
sentence.” As we stated in United States v. Nowicki, with
respect to the sentencing process, “The trial judge may
‘appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may
consider, or the source from which it might come.’ ” 870
F.2d 405, 406-07 (7th Cir. 1989) (quoting United States v.
Nesbitt, 852 F.2d 1502, 1521 (7th Cir. 1988)). This has
long been understood to include “reliable evidence of
wrongdoing for which the defendant has not been charged
or convicted.” Nowicki, 870 F.2d at 407.
  Vitrano cites United States v. Castro-Juarez for the
proposition that we should “look at pre-Booker law by
analogy and ask how the sentence would have fared under
decisions that analyzed the reasonableness of upward
departures.” 425 F.3d 430, 434 (7th Cir. 2005). But in
Castro-Juarez, we wrote that since Booker,
6                                             No. 06-1512

    [W]e have looked to [the “upward departures” provi-
    sion of the guidelines] and [pre- Booker cases] only by
    way of analogy, and while [the defendant’s] sentence
    might not have been sustainable as an “upward depar-
    ture” before Booker, it does not follow that [his sen-
    tence] is necessarily unreasonable. Before Booker, we
    recognized that district courts were required to sen-
    tence within the guideline range except in unusual
    cases, and anything but a loose comparison to pre-
    Booker departure cases would vitiate the post-Booker
    discretion that sentencing courts enjoy. All that is
    necessary now to sustain a sentence above the guide-
    line range is an adequate statement of the judge’s
    reasons, consistent with section 3553(a), for thinking
    the sentence that he has selected is indeed appropriate
    for the particular defendant.
Id. at 436 (internal citation and quotation omitted). See
also United States v. Valle, 458 F.3d 652, 657 (7th Cir.
2006) (“[O]ur pre-Booker standards for evaluating depar-
tures are no longer binding. . . .”); United States v.
Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005) (noting “that
the concept of ‘departures’ has been rendered obsolete
in the post-Booker world”).
  Vitrano has not specifically challenged the reasonable-
ness of his sentence, and so we have no occasion to con-
sider that question. (Given the judge’s explanation and
Vitrano’s record, however, nothing jumps out as unrea-
sonable.) All that is before us is the question whether it
was permissible for the district judge to consider the
evidence included in the government’s 2006 sentencing
memorandum in arriving at the ultimate sentence. We
conclude that it was.
  We turn next to Vitrano’s claim that the district court
failed to rule on his pre-sentencing motion. That motion
raised essentially the same claims that Vitrano is present-
ing here: (1) that the court should not base an enhance-
No. 06-1512                                                7

ment on “irrelevant” conduct; (2) that the request for an
“upward departure” is the product of vindictiveness;
(3) that an “upward departure” is a breach of a promise
made by the prosecutor; and (4) that the government did
not give defense counsel specific notice of the rationale it
intended to use in arguing for an “upward departure.” He
argues that the failure to rule explicitly on his motion
violates FED. R. CRIM. P. 32(i)(3)(B), which states, “At
sentencing the Court must—for any disputed portion of the
pre-sentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or
because the Court will not consider the matter in sen-
tencing.”
  The purpose of Rule 32 is “to ensure that sentencing
is based on reliable facts found by the court itself after
deliberation. . . .” United States v. Darwich, 337 F.3d 645,
666 (6th Cir. 2003). The rule applies specifically to factual
disputes. United States v. Cunningham, 429 F.3d 673, 678
(7th Cir. 2005) (“The rule may be limited to factual
disputes. The cases so assume, without so stating out-
right.”). None of Vitrano’s arguments raises a dispute
about any of the facts on which the district judge relied
in enhancing his sentence; he simply asserts various
reasons why those facts should not have been considered
at all. Rule 32 imposes no affirmative duty on the district
court to address these general points. In any event, the
district judge, who noted at sentencing that he had read all
the briefs and submissions, clearly and accurately stated
its basis for imposing a sentence above the guidelines
range. As the district court explained:
    Post-Booker, the Court can look at the factors under
    3553 . . . . In doing so, the Court . . . looks at the
    history and characteristics of the Defendant. It also
    looks at the nature of the offense in making those
    calculations. And in the past any deviation based on
8                                              No. 06-1512

    those factors from the sentencing guidelines required
    that they be outside the heartland of cases. Now, the
    Court can consider those factors and, as long as the
    sentence is reasonable, not have to make a finding
    that any of the factors or any of the facts that it
    utilizes are outside the heartland of cases as described
    by the sentencing guidelines.
  As for Vitrano’s other arguments, the district court did
not err by leaving them unaddressed. See Cunningham,
429 F.3d at 678 (“A sentencing judge has no more duty
than we appellate judges do to discuss every argument
made by a litigant; arguments clearly without merit can,
and for the sake of judicial economy should, be passed over
in silence. . . .”). Vitrano has not shown that the district
court committed error at sentencing.


                            III
  We now consider Vitrano’s complaints about the prosecu-
tor’s behavior at sentencing. The government’s decision to
introduce the evidence about the pipe bombs and the
other uncharged violent conduct must have been vindic-
tive, in Vitrano’s view, because it did not present this
information at his first sentencing. He relies on the
Supreme Court’s decision in North Carolina v. Pearce,
which held, “Due process of law . . . requires that vindic-
tiveness against a defendant for having successfully
attacked his first conviction must play no part in the
sentence he receives after a new trial.” 395 U.S. 711, 725
(1968). The ruling in Pearce, however, does not help
Vitrano. Pearce was intended in part to protect a defen-
dant’s right to appeal or to attack his first conviction
collaterally without fear of reprisal. Here, though, it was
the government that appealed the initial sentence, and it
did so (as it was entitled to do under 18 U.S.C. § 3742(b))
for the very purpose of exposing Vitrano to more jail time.
No. 06-1512                                               9

The government made it abundantly clear throughout
the litigation that it intended to seek as lengthy a sen-
tence as was legally possible. The plea agreement stated
that “[t]he government will recommend to the sentencing
court that the defendant is an Armed Career Criminal,”
and the government specifically reserved the right “to
recommend an upward departure and/or consecutive
sentences based on aggravating circumstances.”
   It followed through on its promise and argued at the
first sentencing that Vitrano was a career offender. The
government additionally stated at that point that it
believed “very strongly” that Vitrano deserved a sentence
at the high end of the guideline range. Unsuccessful in
persuading the district court that Vitrano qualified for
the ACCA enhancement, the government appealed the
issue. After it won, it announced at re-sentencing that
“[w]e did not take the appeal to establish that the Defen-
dant was an armed career criminal merely as an academic
exercise.” Nothing in this record suggests that the govern-
ment’s actions on re-sentencing had anything to do with
Vitrano’s legal strategy on appeal. There was no vindic-
tiveness here.
  There is also no evidence in the record that the use of
the uncharged conduct at the re-sentencing breached any
promise made by the prosecutor, as Vitrano alleges. In
fact, there is substantial evidence that no such promise
was ever made. Vitrano does not dispute the fact that the
plea agreement contains an integration clause, which
states that “no threats, promises, representations, or other
inducements have been made, nor agreements reached,
other than those set forth in this agreement, to induce the
defendant to plead guilty.” Moreover, as noted, the agree-
ment specifically preserves the government’s right to
advise the district court and the probation office of any
and all information which might be pertinent to sentenc-
ing, as well as the right to seek an upward departure
10                                           No. 06-1512

based on aggravating circumstances. When asked at his
change of plea hearing whether there were any “threats or
promises . . . aside from what’s contained in this Plea
Agreement,” Vitrano replied, “No, Your Honor.” His
attorney’s stated recollection to the contrary does not
outweigh the documented evidence in the record.


                           IV
  We hold that neither the district court nor the govern-
ment committed error during Vitrano’s re-sentencing
proceedings. The sentence is therefore AFFIRMED.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—7-19-07
