                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




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

                                  February 3, 2006

                                       Before

                   Hon. RICHARD A. POSNER, Circuit Judge

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge


No. 04-2663

UNITED STATES OF AMERICA,                       Appeal from the United States District
              Plaintiff-Appellee,               Court for the Western District
                                                of Wisconsin
      v.
                                                No. 04-CR-13
JACK A. DAY,
                Defendant-Appellant.            John C. Shabaz,
                                                Judge.

                                     ORDER

       Jack A. Day pleaded guilty to one count of making false statements with
respect to the actual mileage of a motor vehicle in violation of 49 U.S.C. §
32705(a)(2) and 32709(b). The district court determined that Mr. Day’s odometer
scheme had resulted in a loss to victims of $39,875. Based on this calculation, the
district court sentenced Mr. Day to 25 months’ imprisonment in accordance with the
then-mandatory United States Sentencing Guidelines and also ordered Mr. Day to
pay full restitution. Mr. Day appealed his sentence and the restitution order.

       Because the district court’s sentence rested in part on an estimated loss that
was neither admitted by Mr. Day, nor proven to a jury beyond a reasonable doubt,
we ordered a limited remand pursuant to this court’s decision in Paladino v. United
States, 401 F.3d 471 (7th Cir. 2005), for a determination of whether the district
court would have imposed a different sentence had the court not been bound to
No. 04-2663                                                                   Page 2

sentence Mr. Day within the guideline range attendant to the estimated loss.1

      Pursuant to our remand order, the district court requested statements from
the parties concerning the propriety of the sentence. After considering the parties’
submissions, the district court advised that it would resentence Mr. Day to the
same sentence that it originally had imposed. In doing so, the district specifically
addressed Mr. Day’s claims that considerations such as his age, infirmity and
military service warrant a more lenient sentence:

      Defendant contends that the Court should consider his military service, his
      age (73), his history of alcoholism and his medical condition. The Court does
      consider these factors and they are counterbalanced by his repeatedly taking
      advantage of the trusting and unsuspecting people in his own community and
      his excessive fraudulent activities over a significant period of time.

Memorandum and Order of Sept. 8, 2005, at 3.

       Booker instructs us to review the district court’s sentencing determination for
reasonableness. United States v. Booker, 125 S. Ct. 738, 767 (2005). However,
Booker also anticipates that, in arriving at a sentence, district courts will continue
to look to the Guidelines in reaching appropriate sentences. See id. We have
recognized that “[t]he Guidelines remain an essential tool in creating a fair and
uniform sentencing regime across the country.” United States v. Mykytuik, 415 F.3d
606, 608 (7th Cir. 2005). Thus, “any sentence that is properly calculated under the
Guidelines is entitled to a rebuttable presumption of reasonableness.” Id. Under
this deferential standard, a defendant “can rebut this presumption only by
demonstrating that his or her sentence is unreasonable when measured against the
factors set forth in [28 U.S.C. ] § 3553(a).” Id. Theoretically, a sentence within the
applicable guideline range can be unreasonable, but we have recognized that “it will
be a rare” occurrence. Id.

       In the present case, Mr. Day does not claim that the district court’s
calculation of his sentence under the Guidelines is incorrect, and the sentence,
therefore, is presumptively reasonable. Mr. Day, however, believes that the district
court has exaggerated the seriousness of his crime and has not properly accounted
for his age and medical condition.

     The sentencing considerations set forth in 18 U.S.C. § 3553 do not lend
themselves to a formulaic approach, nor have we adopted such an approach in our


      1
         The Paladino remand was focused solely on Mr. Day’s sentence of
imprisonment. That limited remand, and consequently these subsequent proceedings,
have no bearing on the remand regarding the restitution order.
No. 04-2663                                                                   Page 3

case law. By contrast, we expect district courts to consider the factors set forth
therein and to address specifically those factors which the parties have brought to
the court’s attention. Here, Mr. Day emphasizes the “characteristics of the
defendant,” whereas the district court has focused on “the seriousness of the
offense” and the need “to provide just punishment for the offense,” all of which are
proper considerations under §3553. See 18 U.S.C. § 3553(a) & (a)(1).

       Although reasonable judges might weigh these factors differently and
therefore disagree as to whether a 25-month sentence is the most appropriate one
under the circumstances, Mr. Day has not met his burden of demonstrating that the
sentence imposed is an unreasonable one. The district court was entitled to take
the view it did of the seriousness of the crime and of Mr. Day’s criminal history, and
to sentence Mr. Day accordingly. Notably, the court specifically addressed Mr.
Day’s age, medical condition and military service in its Paladino memorandum.
Even if another jurist may have weighed the statutory factors differently, we cannot
say that the determination of the district court, made after a thorough weighing of
the appropriate factors, was unreasonable. Mr. Day’s sentence of 25 months’
imprisonment is therefore affirmed.

                                                                         AFFIRMED
