                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                                  January 30, 2006

                                       Before

                      Hon. JOHN L. COFFEY, Circuit Judge

                      Hon. ILANA DIAMOND ROVNER, Circuit Judge

                      Hon. TERENCE T. EVANS, Circuit Judge

No. 01-3857

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Northern District of
                                              Illinois, Eastern Division.
      v.
                                              No. 99 CR 836
ANGELO CASSANO,
    Defendant-Appellant.                      Blanche M. Manning,
                                              Judge.

                                     ORDER

       In May of 2001, Angelo Cassano was convicted of conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h), and structuring of currency
transactions, in violation of 31 U.S.C. §§ 5324(a)(3) and 5322(a), in conjunction with
his role in a check kiting scheme that successfully defrauded CNA Financial
Corporation, Chicago, Illinois, of approximately 3.8 million dollars. See United
States v. Cassano, 372 F.3d 868, 871-73 (7th Cir. 2004). At sentencing, the district
court calculated the applicable sentencing guidelines range to be 63 to 78 months,
and sentenced Cassano at the very bottom of the range giving him 63 months in
prison. Cassano subsequently filed a direct appeal, and this court affirmed in an
opinion dated June 16, 2004. See id. at 876-85.
No. 01-3857                                                                             Page 2

       Then, on June 24, 2004, the Supreme Court announced its decision in Blakely
v. Washington, 542 U.S. 296 (2004), calling into question the constitutionality of the
federal sentencing guidelines. Based on that decision, Cassano petitioned the Court
for a writ of certiorari premised only on the constitutionality of the imposition of his
sentence, which was later granted by the Supreme Court with instructions that the
case be remanded for further consideration in light of the Court’s decision in United
States v. Booker, 125 S. Ct. 738, 757 (2005). See Cassano v. United States, 125 S. Ct.
1018 (2005). On remand, we ordered a limited remand to the district court in order
to determine whether that court would have sentenced Cassano differently had it
known that it was not bound by the guidelines. See United States v. Paladino, 401
F.3d 471, 481 (7th Cir. 2005).

       The district judge has replied stating that she would have given Cassano the
same sentence notwithstanding the newly determined advisory nature of the
guidelines. See United States v. Cassano, No. 99 CR 836-6, *3 (N.D. Ill. Sept. 13,
2005). We invited both Cassano and the government to file arguments concerning
the reasonableness of Cassano’s sentence, however, only the government accepted
that invitation. We affirm, holding that the sentence imposed on Cassano was
reasonable. See United States v. Newsom, 428 F.3d 685, 686 (7th Cir. 2005);
Paladino, 401 F.3d at 484.

        Our review of a district court’s sentencing determination is deferential, and
we will not substitute our judgement for that of the district court concerning what
sentence should have been imposed on the defendant. See United States v. Williams,
425 F.3d 478, 481 (7th Cir. 2005). In addition, a sentence that is within a properly
calculated guidelines range is presumptively reasonable. See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) An appellant may rebut this
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).
Id. (citing Booker, 125 S. Ct. at 766).

       On remand to the district court, Cassano did not argue that his sentence was
improperly calculated under sentencing guidelines nor did he contend that the
district court should have departed downward based on the factors enumerated in
18 U.S.C. § 3553(b). Instead, Cassano averred that the district judge should have
departed downward in order to account for the three months that he spent confined
in federal prison prior to his conviction–after being transferred from state prison1
pursuant to a writ of habeas corpus ad prosequendum. The district court found the
argument to be “beyond the scope of a Paladino remand,” and added that “[i]n any


       1
        Before being indicted on federal charges, Cassano was serving out a state sentence for
deceptive practices.
No. 01-3857                                                                                Page 3

event, . . . Cassano does not contend that he did not receive state credit for the time
he spent in federal custody.”2 Cassano, No. 99 CR 836-6 at *2-3. We agree.

       Initially, it should be made clear that, although the district court did not cite
the fact, there is a federal statute which governs whether or not a defendant is to be
given credit for time spent in federal custody prior to trial, 18 U.S.C. § 3585. Section
3585 states that “[a] defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention . . . that had not been
credited against another sentence.” Thus, because Cassano “does not contend that
he did not receive state credit for the time he spent in federal custody,” it follows
that he would not also be entitled to credit against his federal sentence. Cassano,
No. 99 CR 836-6 at *3.

       In addition, the district court failed to address the fact that only the Attorney
General of the United States, through the Federal Bureau of Prisons, has the
authority to grant credit for time served prior to trial pursuant to § 3585(b). See
United States v. Wilson, 503 U.S. 329, 333-35 (1992). Indeed, as the Supreme Court
specifically stated in Wilson, “Congress has indicated that computation of the credit
must occur after the defendant begins his sentence. A district court, therefore,
cannot apply § 3585(b) at sentencing.” Id. at 333. As a result, even if Cassano were
to claim that the state did not give him credit for time served, and he is accordingly
entitled to have such time applied to his federal sentence, his quarrel would be with
the Bureau of Prisons and not the judge that imposed sentenced upon him. See Jake
v. Herschberger, 173 F.3d 1059, 1063 (7th Cir. 1999) (stating that in such
circumstances a “prisoner's first avenue to seek relief is therefore through the
BOP's administrative procedures”). That being the case, not only was Cassano’s
argument “beyond the scope of a Paladino remand,” it was also beyond the
jurisdiction of the district court. See id.; Mathews v. Eldridge, 424 U.S. 319, 328
(1976).

       In any event, the district court properly applied the guidelines when
calculating Cassano’s sentence, and consequently his sentence, as imposed, is to be
considered presumptively reasonable. Mykytiuk, 415 F.3d at 608. Cassano has
declined our invitation to point out why the district court’s analysis should be
considered insufficient to support his sentence or why the sentence he received was
unreasonable when measured against the § 3553(a) factors. Further, while
informing us that she would have given Cassano the same sentence has the
guidelines been advisory, the district judge specifically referenced a number of the


       2
        In addition, the court went on to conclude that due to the “seriousness of Cassano’s . . .
crimes” and his “significant criminal history,” the sentence was appropriate under the guidelines
and 18 U.S.C. § 3553.
No. 01-3857                                                                               Page 4

factors enumerated in 18 U.S.C. § 3553(a) as integral to her decision not to sentence
Cassano differently.3

       Thus, because the district court judge would have imposed the same sentence
post-Booker and due to the fact that Cassano has failed to rebut the presumption
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)). Accordingly, we AFFIRM the judgment of the district court.




       3
         Specifically, the trial judge noted the "seriousness of Cassano’s financially-based
crimes," Cassano's significant criminal history, the need to "protect the community at large" and
the need to "deter him from committing additional criminal activity in the future."
