                         NONPRECEDENTIAL DISPOSITION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 September 25, 2006
                                Decided June 12, 2007

                                         Before

                           Hon. WILLIAM J. BAUER, Circuit Judge

                           Hon. MICHAEL S. KANNE, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge


No. 05-4196

UNITED STATES OF AMERICA,                         Appeal from the United States District
              Plaintiff-Appellee,                 Court for the Northern District
                                                  of Illinois, Eastern Division.
      v.
                                                  No. 02-CR-432
JOSE VALLEJO,
            Defendant-Appellant.                  David H. Coar,
                                                  Judge.




                                       ORDER

       This appeal concerns the sentence that Jose Vallejo received for the offense of
possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g).
Initially, the district court imposed a sentence of 262 months’ imprisonment, but on
Vallejo’s first appeal this court vacated that sentence and remanded for resentencing
in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Vallejo,
134 Fed. Appx. 90, 92 (7th Cir. 2005) (Vallejo I). On remand, the district court held a
new sentencing hearing, after which it imposed the same sentence of 262 months.
No. 05-4196                                                                      Page 2



Vallejo appeals again, this time claiming first that the court made certain errors in
computing his advisory sentencing guideline range, and second that the district court
mistakenly thought that it could not impose a sentence below the advisory guidelines
unless Vallejo rebutted a presumption of reasonableness. While we see no reversible
error in the court’s calculation of the advisory range, we conclude that the court erred
when it assumed that it was bound by a presumption of reasonableness and it could
not deviate from the guidelines sentence unless Vallejo met an extra burden of
persuasion. We therefore vacate Vallejo’s sentence again and remand for resentencing.

        The facts underlying Vallejo’s conviction can be summarized briefly. On August
24, 2001, Vallejo was driving his red Cougar, with some passengers. Vallejo’s Cougar
and several other cars converged near the home of a friend of a young man named
Anthony Ocasio, apparently in some kind of gang show-down. Vallejo and his group got
out of their cars, brandishing guns. Matters escalated at that point: Vallejo pointed his
gun at a man who had just come out of a nearby house; Vallejo then hit Ocasio with his
gun; he broke the windshield of Ocasio’s car with the gun; and he fled in his own car,
firing into the air as he left. Shortly thereafter, Ocasio and the other man called 911
and were helped by a Chicago police officer. The officer found a fired cartridge casing
at the nearby intersection. About a week later, Vallejo, again in the red Cougar,
shouted an apparent threat at two passers-by. One of them notified the police of the
harassment. Vallejo was arrested and taken into custody, and eventually he was linked
to the earlier shooting. He was tried before a jury, which found him guilty, and
sentenced as we have already described.

       The first argument Vallejo makes on appeal is one that we have rejected
repeatedly: he claims that the Fifth Amendment always requires that factual findings
made to support an enhancement under the Sentencing Guidelines be supported by
proof beyond a reasonable doubt. It requires no such thing, as long as the finding
relates only to the guideline range and not the statutory maximum. See United States
v. Dean, 414 F.3d 725, 730 (7th Cir. 2005); United States v. Robinson, 435 F.3d 699,
701 (7th Cir. 2006) (noting that calculating the appropriate advisory guidelines range
is “no different now than it was before Booker . . . . District judges must resolve
disputed factual issues, determine relevant conduct by a preponderance of the
evidence, and apply the appropriate sentence enhancements in order to compute the
advisory guidelines sentence range.” (internal citations omitted)).

       Vallejo’s second argument, however, has merit. The district court’s remarks at
sentencing show that the court explicitly rejected the argument that the presumption
of reasonableness that was discussed in United States v. Mykytiuk, 415 F.3d 606 (7th
Cir. 2005), was directed toward appellate review only. Counsel for Vallejo respectfully
suggested that the court was mistaken, and that the court was free, once it had
No. 05-4196                                                                        Page 3



properly calculated the advisory guideline range, to select any sentence consistent with
the factors set out in 18 U.S.C. § 3553(a). But the court held that unless the defendant
could rebut the reasonableness of the advisory guideline sentence, then the district
court was required to impose that sentence.

       At the time the district court ruled, the decisions of this court were
unfortunately not as clear or consistent as they should have been on this point. As we
have since had occasion to stress, however, Mykytiuk addressed only the approach that
a court of appeals should take to a sentence selected by a district court. We did not
have before us a claim that district judges ought to apply any kind of presumption in
favor of a guidelines sentence, nor did we mean to endorse that idea. Recent decisions
have, we hope, eliminated whatever confusion existed. As we said in United States v.
Gama-Gonzales, “To say that a sentence within the range presumptively is reasonable
is not to say that district judges ought to impose sentences within the range. See
United States v. DeMaree, 459 F.3d 791, 794-95 (7th Cir.2006). It is only to say that,
if the district judge does use the Guidelines, then the sentence is unlikely to be
problematic.” 469 F.3d 1109, 1110 (7th Cir. 2006). As we put it in Demaree:

      The judge is not required – or indeed permitted, United States v. Brown,
      450 F.3d 76, 81-82 (1st Cir.2006) – to “presume” that a sentence within
      the guidelines range is the correct sentence and if he wants to depart give
      a reason why it’s not correct. All he has to do is consider the guidelines
      and make sure that the sentence he gives is within the statutory range
      and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a).

459 F.3d at 794-95.

        Because the district court believed that its discretion to select a reasonable
sentence was more constrained than it was, we VACATE the sentence and REMAND for
further proceedings. By the time the district court takes up this matter, it is likely that
the Supreme Court will have handed down its decision in Rita v. United States, --- U.S.
---, 127 S.Ct. 551, 855, 166 L.Ed.2d 406 (cert. granted, Nov. 3, 2006) (raising question
whether any presumption of reasonableness is consistent with Booker). Needless to
say, the district court should take whatever new guidance the Supreme Court provides
as its starting point in the resentencing process.
