                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3272

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JUAN M ARTIN R EYES-M EDINA,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 09 CR 240-1—Milton I. Shadur, Judge.



       A RGUED A PRIL 12, 2012—D ECIDED JUNE 27, 2012




   Before E ASTERBROOK, Chief Judge, and M ANION and
S YKES, Circuit Judges.
  M ANION, Circuit Judge. Juan Martin Reyes-Medina
pleaded guilty to two counts of knowingly and inten-
tionally using a communication facility in committing,
causing, or facilitating a drug trafficking crime in viola-
tion of 21 U.S.C. § 843(b). The district court sentenced
him to 48 months’ imprisonment on Count I, and
39 months on Count II, to run consecutively. Reyes-
2                                            No. 11-3272

Medina now appeals, arguing that the district court
failed to consider two sentencing factors when it
imposed his sentence, and that a consecutive sentence
was unreasonable and excessive. We affirm.


                           I.
  Juan Martin Reyes-Medina’s two-count information
was based on two telephone conversations he had with
a cooperating government informant. The first conversa-
tion occurred in the evening hours of March 11, 2009.
The cooperating informant and Reyes-Medina agreed
that they would meet the next day and Reyes-Medina
would pay the informant $120,000 in exchange for five
kilograms of cocaine. The following morning, Reyes-
Medina and the informant spoke again over the tele-
phone, finalizing their plans for the location and time
of the exchange. At approximately 4:00 p.m. on March 12,
2009, Reyes-Medina met with the cooperating informant
at the agreed-on location; each arrived in separate vehi-
cles. The informant passed a black duffel bag containing
sham cocaine to Reyes-Medina, and Reyes-Medina passed
a grocery bag filled with $120,000 to the informant. Gov-
ernment agents arrested Reyes-Medina soon thereafter.
   After Reyes-Medina was arrested, the agents searched
his restaurant and an apartment he maintained on the
top floor of his restaurant. The search yielded three
firearms, 2.85 kilograms of heroin, 1.7 grams of cocaine,
$54,000 in cash, and narcotics-distribution parapher-
nalia. With this evidence in hand, the government
charged Reyes-Medina with three criminal counts: at-
No. 11-3272                                                3

tempting to knowingly and intentionally possess a con-
trolled substance; knowingly and intentionally pos-
sessing a controlled substance; and knowingly possessing
a firearm in furtherance of a drug trafficking crime.
  The district court subsequently suppressed the evi-
dence obtained during the search of Reyes-Medina’s
restaurant and apartment, so the government issued a
superseding information that charged him with only
two counts of knowingly and intentionally using a com-
munication facility in committing, causing, or facili-
tating a drug trafficking crime in violation of 21 U.S.C.
§ 843(b). Each so-called “telephone count” carried a
statutory maximum of 48 months’ imprisonment,
21 U.S.C. § 843(d)(1), and the district court calculated a
sentencing guidelines range of 87 to 96 months’ impris-
onment. Reyes-Medina pleaded guilty to the super-
seding information and asked for concurrent sentences,
but, after a thorough sentencing hearing, the district court
sentenced him to consecutive terms of imprisonment of
48 months for Count I, and 39 months for Count II. Reyes-
Medina appeals, challenging the district court’s alleged
failure to apply two of the sentencing factors listed in
18 U.S.C. § 3553(a), as well as the court’s decision to
impose consecutive terms of imprisonment.


                             II.
  We review the district court’s sentencing procedure
de novo. United States v. Pulley, 601 F.3d 660, 664 (7th Cir.
2010) (citing United States v. Smith, 562 F.3d 866, 872 (7th
Cir. 2009)). “The substantive reasonableness of a sen-
4                                                No. 11-3272

tence is reviewed for an abuse of discretion and a
correctly calculated, within-Guidelines sentence is
entitled to a presumption of reasonableness.” Id. (cita-
tions omitted). Reyes-Medina’s arguments attack both
the district court’s sentencing procedure and the sub-
stantive reasonableness of his sentence. We will address
each in turn.


                 A. Sentencing Procedure
  We have previously laid out the proper procedure
for imposing a sentence. First, the district court con-
siders “the presentence investigation report and its in-
terpretation of the [sentencing] guidelines.” Smith, 562
F.3d at 872 (citing Rita v. United States, 551 U.S. 338, 351
(2007)). Then, the district court must “subject the defen-
dant’s sentence ‘to the thorough adversarial testing
contemplated by the federal sentencing procedure.’ ” Id.
(quoting Rita, 551 U.S. at 351). That testing involves
considering whether to impose a guidelines sentence
in light of the sentencing factors listed in 18 U.S.C.
§ 3553(a). Id. Specifically, the district court “must allow a
defendant to point out any of the § 3553(a) factors that
might justify a sentence outside of the guidelines range,
and must consider those factors when determining the
sentence.” Id. at 873 (citing United States v. Tyra, 454 F.3d
686, 687 (7th Cir. 2006)). “The district court need not
explicitly discuss all of the factors in § 3553(a), but it
must show that it has given meaningful consideration
to the factors, and it must articulate the factors that deter-
No. 11-3272                                               5

mined its chosen sentence.” Tyra, 454 F.3d at 687-88
(citations omitted).
   The only aspect of the sentencing procedure that Reyes-
Medina challenges is the district court’s purported
failure to consider the two sentencing factors found in
subsections (a)(5) and (6) of § 3553. At the outset, we note
that a sentencing judge may “discuss the application of
the statutory factors to the defendant not in checklist
fashion but instead in the form of 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.” United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (citations omit-
ted). Here, however, the judge actually did step
through each § 3553(a) factor in checklist fashion, ar-
ticulating each factor’s applicability and weight in this
particular case. Even so, we are mindful of the fact
that “the judge need not ‘write a comprehensive essay
applying the full panoply of penological theories and
considerations, which is to say everything invoked or
evoked by section 3553(a) . . . , to the case before him.’ ”
Smith, 562 F.3d at 873 (quoting Dean, 414 F.3d at 729)).
That said, we will analyze both subsections of § 3553(a)
that Reyes-Medina claims were given short shrift.
  Taking subsection (a)(6) first, this provision states
that “[t]he court, in determining the particular sentence
to be imposed, shall consider . . . the need to avoid unwar-
ranted sentencing disparities among defendants with
similar records who have been found guilty of similar
conduct.” In addressing this factor, the district court
judge opined that
6                                               No. 11-3272

    [it] has always struck me as being an appeal to sub-
    jectivity of a kind that courts should not be utilizing
    to any extent because what is an unwarranted
    disparity is sort of like, you know, beauty is in the
    eye of the beholder. You can rationalize any disparity
    as being unwarranted, just as you can rationalize
    the opposite side. And, therefore, that sometimes
    does play a useful part as, for example, when there
    are co-defendants involved and you want to make
    sure their comparative culpability is adequately
    reflected, but that is not a factor here.
Reyes-Medina highlights the court’s use of an example
of a case involving co-defendants as evidence that the
court did not consider this factor. We recognize that “the
kind of ‘disparity’ with which § 3553(a)(6) is concerned
is an unjustified difference across judges (or districts)
rather than among defendants in a single case.” United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). But
here, contrary to Reyes-Medina’s assertion, the district
court judge never said that the factor only applies to co-
defendants. Rather, it is clear from the context of his
statement that the judge was simply giving an example
of an instance when the factor would be especially rele-
vant.
  Moreover, if a district court judge “ ‘correctly calcu-
lated and carefully reviewed the [g]uidelines range, he
necessarily gave weight and consideration to the need to
avoid unwarranted disparities.’ A sentence within a
[g]uideline range ‘necessarily’ complies with § 3553(a)(6).”
United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009)
No. 11-3272                                                 7

(quoting Gall v. United States, 552 U.S. 38, 54 (2007)). Here,
there is no dispute that the district court correctly calcu-
lated the guideline range or that Reyes-Medina’s sen-
tence was within that range. Thus, the district court
judge did not need to say a word about § 3553(a)(6)’s
application in this case to satisfy the procedural require-
ment that he give that factor “meaningful consideration.”
  Reyes-Medina next complains that the district court
judge failed to consider his arguments made under
§ 3553(a)(5). That subsection requires a sentencing court
to consider “any pertinent policy statement . . . issued
by the Sentencing Commission.” 18 U.S.C. § 3553(a)(5).
At the sentencing hearing, the district court judge
referred to this provision as “a historical relic because
that was applicable only at a time when the [s]entencing
[g]uidelines themselves were mandatory and, therefore,
when they contain policy statements, they were con-
sidered by a different standard. That is no longer true
because the whole thing is advisory.” Reyes-Medina cries
foul, arguing that, even in the post-United States v.
Booker world where the guidelines are advisory, see 543
U.S. 220, 245 (2005), a sentencing court must still give
pertinent policy statements “ ‘respectful consideration.’ ”
Pepper v. United States, 131 S. Ct. 1229, 1247 (2011) (quoting
Kimbrough v. United States, 552 U.S. 85, 101 (2007)). But a
fair reading of the district court judge’s statement
shows that he was merely confirming the post-Booker
reality that the guidelines are no longer mandatory.
This is especially true with respect to policy state-
ments—even before the Booker decision made the guide-
lines advisory, the U.S. Sentencing Commission called
8                                                No. 11-3272

“ ‘policy statements’ . . . merely ‘advisory’ and hence ‘non-
binding.’ ” United States v. Robertson, 648 F.3d 858, 859
(7th Cir. 2011) (quoting, inter alia, United States v. Carter,
408 F.3d 852, 854 (7th Cir. 2005)). A fortiori, now, when
the entire guidelines are only advisory, the parts of the
guidelines that were non-binding even before Booker—e.g.,
policy statements—“are intended to be given even less
consideration by sentencing judges.” Id. The district
court judge’s comment on the policy-statement factor
in § 3553(a)(5) is consistent with how the guidelines
are now construed.
   Nevertheless, because § 3553(a) still requires some
consideration of pertinent policy statements, a sen-
tencing judge must “say something that enables the ap-
pellate court to infer that he considered [pertinent
policy statements].” Id. at 860 (citations omitted). Reyes-
Medina contends that the judge did not explicitly
mention or address two specific policy arguments made
by Reyes-Medina at sentencing: an argument about the
efficacy of probation or a split sentence as a deterrent,
and an argument concerning Reyes-Medina’s personal
characteristics and circumstances. At the outset, it is
important to note that we have never required a
sentencing judge to recite “chapter and verse” of the
pertinent policy statements that he considers. Id. Instead,
“[a] short explanation will suffice where the context
and record make clear the reasoning underlying the
district court’s conclusion.” United States v. Schroeder,
536 F.3d 746, 755 (7th Cir. 2008) (citation omitted). Here,
it is clear from the totality of the judge’s statements that
he considered and discounted both policy arguments.
No. 11-3272                                              9

  After Reyes-Medina’s counsel argued at length for
probation or a split sentence, the district court judge
rejected the idea that a non-custodial sentence was ap-
propriate in this case, stating that “I don’t find any
of the arguments in support of that to be convincing.”
His reason for rejecting Reyes-Medina’s argument was
evident: the judge noted that this was a special case
because the underlying offense involved a “very sub-
stantial drug transaction.” In a nod to the volume of
drugs and drug-related paraphernalia found on Reyes-
Medina’s property after the arrest, the judge then noted
that this was not “an isolated transaction . . . whose
significance ought to be downplayed.” Accordingly,
the judge stated that “when we look again at the under-
lying offense that has given rise to the ultimate super-
seding information, the idea of saying, well, this
one is now probationable because of the fact that it
has been converted to phone charges is really not
very convincing.” This explanation adequately addresses
Reyes-Medina’s argument for probation or a split sentence.
  Reyes-Medina also claims that the judge failed to con-
sider his personal characteristics—specifically, his strong
family ties and responsibilities and his impressive em-
ployment record. But it is clear in the record that
the judge considered this argument in his sentencing
decision. After defense counsel outlined Reyes-Medina’s
personal characteristics—along with the rest of his ar-
guments—the judge noted that he did not find any
of those arguments convincing as mitigating influences
on Reyes-Medina’s sentence. Again, the judge’s rea-
soning for discounting Reyes-Medina’s argument was
10                                              No. 11-3272

sound: the seriousness of the underlying offense trumped
the positive aspects of his personal characteristics.
  In sum, the district court adequately addressed all
of Reyes-Medina’s arguments under the § 3553(a) factors
and otherwise followed the correct sentencing pro-
cedure in handing down Reyes-Medina’s sentence.


              B. Reasonableness of Sentence
  Reyes-Medina also argues that the district court erred
by failing to consider his argument that the guidelines
establish a presumption of concurrent sentences and,
moreover, that defendants in other districts who were
convicted on telephone counts routinely receive concur-
rent sentences—not consecutive sentences. “A sentence
is reasonable if the district court gives meaningful con-
sideration to the factors enumerated in 18 U.S.C. § 3553(a),
including the advisory sentencing guidelines, and ar-
rives at a sentence that is objectively reasonable in
light of the statutory factors and the individual circum-
stances of the case.” United States v. Shannon, 518 F.3d 494,
496 (7th Cir. 2008) (citing Gall, 552 U.S. at 49-50; United
States v. Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007)). A
sentence within the guidelines range is presumed rea-
sonable. Pulley, 601 F.3d at 664 (citations omitted).
  It is clear that the district court judge duly considered
and rejected Reyes-Medina’s argument. The judge ob-
served that
     when we are dealing with something that on its own
     in [g]uideline terms would create an advisory range
No. 11-3272                                            11

   and that would not adequately be accounted for
   by concurrent sentences, the Court is certainly free
   and I think in candor obligated to consider the con-
   secutive aspect in order to accomplish what the pur-
   poses of [§] 3553 would otherwise require.
After discussing the § 3553(a) factors and noting the
seriousness of the underlying facts of the case, the judge
determined that “a consecutive sentence of some type
is called for . . . [because a concurrent sentence] would
be totally inadequate to deal with the factors as I have
outlined them.” The judge’s analysis is consistent with
section 5G1.2(d) of the U.S. Sentencing Guidelines
Manual: “If the sentence imposed on the count carrying
the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more
of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence
equal to the total punishment.” By imposing a consecu-
tive sentence of 48 and 39 months’ imprisonment on
Counts 1 and 2, respectively, the judge imposed a total
term of imprisonment that fell at the bottom of the prop-
erly calculated 87-to-96-month guidelines range. That
calculation is entitled to a presumption of reasonableness
that Reyes-Medina has not rebutted.
  Supposing that the district court judge had imposed
a concurrent sentence, Reyes-Medina’s total period of
imprisonment would have been 48 months—39 months
below the guidelines range. Given such a large variance,
the district court judge would have been “required to
enunciate persuasive reasons, based on the factors in
12                                              No. 11-3272

section 3553(a), for the variance.” United States v. Carter,
538 F.3d 784, 790 (7th Cir. 2008) (citing Gall, 552 U.S. at
50; United States v. Omole, 523 F.3d 691, 698 (7th Cir.
2008)). It is evident that such persuasive reasons are
absent here—particularly given the underlying facts.
Defense counsel implicitly acknowledged as much at
the sentencing hearing: “I don’t know what the Court
is going to do about concurrent or consecutive sen-
tences. You could go either way.” Accordingly, the district
court did not abuse its discretion in sentencing Reyes-
Medina to 87 months’ imprisonment.


                            III.
  The district court followed proper sentencing pro-
cedures and, after thoroughly considering Reyes-Medina’s
arguments and applying the § 3553(a) factors, imposed
a guidelines sentence that was objectively reasonable.
We therefore A FFIRM the judgment of the district court.




                           6-27-12
