                               NONPRECEDENTIAL DISPOSITION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 March 5, 2008
                                   Decided March 10, 2008


                                             Before

                         FRANK H. EASTERBROOK, Chief Judge

                         DANIEL A. MANION, Circuit Judge

                         DIANE S. SYKES, Circuit Judge


No. 07-1861                                                     Appeal from the United
                                                                States District Court for the
UNITED STATES OF AMERICA,                                       Northern District of Illinois,
      Plaintiff-Appellee,                                       Eastern Division.
              v.
                                                                No. 06 CR 672
OSCAR MARTINEZ -MUNGUIA,                                        James B. Zagel, Judge.
     Defendant-Appellant.

                                              Order

    Oscar Martinez-Munguia pleaded guilty to an indictment charging him with unlaw-
ful transportation of aliens, 8 U.S.C. §1324(a)(1)(A)(ii), plus his own illegal reentry into
this country, 8 U.S.C. §1326(a), (b)(2). He has been sentenced to 42 months’ imprison-
ment, which he maintains is unreasonably high in light of the assistance he provided in
prosecuting his confederates. Yet the sentence is within a properly calculated range un-
der the Sentencing Guidelines and so is presumptively reasonable. See Rita v. United
States, 127 S. Ct. 2456 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

    Martinez-Munguia believes that the district judge misunderstood the extent of his
discretion, because he remarked that he could not reduce the range under §5K1.1 with-
out a motion by the prosecutor. The transcript of sentencing demonstrates, however,
that the judge was well aware of the proper approach. The first step is to calculate the
No. 07-1861                                                                            Page 2

guideline range correctly, see Gall v. United States, 128 S. Ct. 586, 596 (2007), and this re-
quires respecting all of the rules established by the Sentencing Commission. One of
these rules is that a reduction under §5K1.1, which deals with substantial assistance to
the prosecutor, depends on the prosecutor’s assent. Once the range has been estab-
lished, a judge is free to impose a sentence above or below that range, to the extent that
the criteria in 18 U.S.C. §3553(a) justify a higher or lower sentence. The judge thus may
reduce a sentence on account of assistance in prosecuting other cases, whether or not
the prosecutor makes a motion under §5K1.1. The judge stated all of this in open court.

    Martinez-Munguia’s real contention is that the judge should have given him a re-
ward for assistance. Actually the judge did just that. He said that Martinez-Munguia’s
conduct and criminal history would have led to a sentence above the guideline range,
but for the assistance to the prosecutor. The mid-range sentence thus provided a benefit
for assistance. The judge also suggested that, if Martinez-Munguia’s aid produces more
benefits later on, the prosecutor is free to move for an additional reduction under Fed.
R. Crim. P. 35(b). The sentence that the judge imposed is substantively reasonable and
not marred by any procedural error.

                                                                                   AFFIRMED
