                      NONPRECEDENTIAL DISPOSITION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

                              Submitted April 18, 2007
                                Decided May 1, 2007

                                       Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. JOHN L. COFFEY, Circuit Judge

                    Hon. JOEL M. FLAUM, Circuit Judge

No. 06-2153

UNITED STATES OF AMERICA,                       Appeal from the United States
     Plaintiff-Appellee,                        District Court for the Southern
                                                District of Illinois
      v.
                                                No. 3:05-CR-30058-001-MJR
DAVID L. EMERSON,
    Defendant-Appellant.                        Michael J. Reagan,
                                                Judge.

                                     ORDER

       David Emerson pleaded guilty to one count of possessing a firearm as a felon
and two counts of possessing with intent to distribute cocaine base. See 18 U.S.C.
§ 922(g)(1); 21 U.S.C. §§ 841(a)(1), b(1)(B), b(1)(C). The district court sentenced him
to 262 months’ imprisonment, at the low end of the advisory guidelines range. On
appeal Emerson argues that (1) that the district court misunderstood its role under
Booker when it instructed him to rebut the presumption of reasonableness given to
a sentence within the advisory Sentencing Guidelines, and (2) the district court
should have lowered his sentence to reduce the disparity between the advisory
guidelines ranges for crack and powder cocaine. The record shows that the district
court appropriately weighed the sentencing factors of 18 U.S.C. § 3553(a) before
No. 06-2153                                                                   Page 2

sentencing Emerson; moreover, his argument about the crack and powder cocaine
disparity is foreclosed by this court’s precedents. We affirm.

                                  I. Background

       In December 2004 police officers responded to a call from the Black Bull Bar
and Grill in Brooklyn, Illinois. Officers were told that a man named “David Lee”
had brandished a handgun, and upon their arrival they found 49 year-old David Lee
Emerson at the bar’s entrance. The police asked Emerson to leave peaceably, but
he refused, and they arrested him. Subsequent to Emerson’s arrest, the officers
conducted a pat-down search and found a .45 caliber semiautomatic pistol, as well
as nearly 4 grams of cocaine base in his pants pocket. A follow-up investigation
revealed that he had been convicted of at least three other felonies, and he was
arrested again in April 2005. During the U.S. Marshals search of him, he was
found also to be carrying roughly 12 grams of cocaine base.

      In May 2005 Emerson was charged with possessing a firearm as a felon, 18
U.S.C. § 922(g)(1), and possessing with intent to distribute crack cocaine, 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), (b)(1)(C). He pleaded guilty to the charges in August 2005.
Because of his three prior violent felony convictions, he was subject to an enhanced
sentence under 18 U.S.C. § 924(e), and was deemed an armed career criminal under
U.S.S.G. § 4B1.4. Emerson’s guidelines imprisonment range was 262 to 327
months, and the district court sentenced him to 262 months.

                                  II. Discussion

       On appeal Emerson does not challenge his guilty plea or the district court’s
calculation of the advisory guidelines range. Instead he contends that his sentence
was procedurally unreasonable and that the district court “misunderstood its
authority” under United States v. Booker, 543 U.S. 220 (2005), when it required him
to overcome the presumption of reasonableness attached to a sentence within the
guidelines range.

       The Supreme Court granted certiorari in Rita v. United States, No. 05-4674,
2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov.
3, 2006) (No. 06-5754), to determine whether the presumption of reasonableness is
appropriate, but as the law of this circuit presently stands, Emerson’s argument is
untenable. See United States v. Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir.
2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see also United
States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2006) (“A sentence that falls within
the guidelines range is more likely to be reasonable than one outside the guidelines
range.”); but see United States v. Fernandez, 443 F.3d 19, 27-28 (2d. Cir. 2006)
(declining to hold that a sentence within the guidelines range is presumptively
No. 06-2153                                                                   Page 3

reasonable). As we explained in Gama-Gonzalez, the presumption of
reasonableness means only that if the district court, after reviewing the Guidelines
and the sentencing factors set out in 18 U.S.C. § 3553(a), selects a sentence within
the guidelines range, the sentence is “unlikely to be problematic.” Gama-Gonzalez,
469 F.3d at 1110-11.

      Here Emerson argues that his sentence was procedurally unreasonable
because the district court required him to overcome a presumption that a sentence
within the Guidelines was appropriate. He points to the court’s assertion that “[t]o
overcome the presumption of reasonableness, the defendant must demonstrate his
sentence is unreasonable when measured against the factors set forth in section
3553(a).”

       But in this case, the record shows that the district court properly sentenced
Emerson based on the Guidelines and on the § 3553(a) factors. In rejecting
Emerson’s request for a downward deviation, the court explained that none of the
factors that Emerson raised—his drug addiction, his older age, his familial
obligations, and an inappropriate disparity between the advisory guidelines range
and state court sentences for the same offense—were recognized grounds for
sentencing below the Guidelines. The court also took into account Emerson’s
lengthy criminal record, his career-offender status, and the seriousness of this
offense in determining that a sentence within the guidelines range was appropriate.
Emerson does not dispute the district court’s application of the Guidelines and does
not argue that the court failed to consider a relevant factor under 18 U.S.C.
§ 3553(a), nor could he based on this record.

       Emerson further contends that this court has “split” on whether a
presumption of reasonableness applies to a within-Guidelines sentence. He
suggests that Mykytuik’s presumption of reasonableness is at odds with decisions
such as United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006), which
contains language that, he believes, forecloses judges from applying any
presumption. He points, for instance, to our admonition in Demaree that “[t]he
judge is not required—or indeed, permitted . . . to ‘presume’ that a sentence within
the guidelines range is the correct sentence . . . .” Id.

      Emerson misinterprets the quoted language from Demaree. In Demaree we
did not distance ourselves from the presumption. See 459 F.3d at 794-95. Instead,
we emphasized that district judges must consult the Guidelines, along with the
statutory range and § 3553(a) factors before imposing a sentence, and should not
assume that a particular sentence is appropriate just because it falls within the
guidelines range. See id. So long as the trial judges based their sentences on the
Guidelines and § 3553(a) factors, those sentences would be subject to “light
appellate review.” Id.
No. 06-2153                                                                    Page 4

       Emerson also argues that his sentence is unreasonable because crack cocaine
is punished more severely than powder cocaine. Because he failed to challenge the
crack-powder cocaine disparity before the district court, we review for plain error.
See United States v. Jones, 455 F.3d 800, 810 (7th Cir. 2006). Emerson
acknowledges that we have previously rejected this argument, citing United States
v. Miller, 450 F.3d 270, 275-76 (7th Cir. 2006) and United States v. Gipson, 425 F.3d
335, 337 (7th Cir. 2005), but invites us to postpone our decision pending the
outcome of Claiborne v. United States, 439 F.3d 479 (8th Cir. 2006), cert. granted, 75
U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-5618)—which he believes is relevant
because, since Claiborne is a crack case, “the Supreme Court’s opinion may address
the crack/powder disparity.”

       Claiborne, however, is not applicable to Emerson’s case. In Claiborne, the
Eighth Circuit deemed the defendant’s 15-month sentence for possessing and
distributing cocaine base to be an unreasonable downward variance from an
advisory guidelines range of 37 to 46 months. See 439 F.3d at 480-81. The
questions presented in the Supreme Court’s grant of certiorari are: (1) was the
district court’s choice of below-Guidelines sentence reasonable, and (2) in making
that determination, is it consistent with United States v. Booker, 543 U.S. 220
(2005), to require that a sentence which constitutes a substantial variance from the
Guidelines be justified by extraordinary circumstances? Claiborne v. United States,
439 F.3d 479 (8th Cir. 2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006)
(No. 06-5618). As the law presently stands, arguments about the disparity in
treatment between crack and powder cocaine are without merit. See, e.g., United
States v. Acosta, 474 F.3d 999, 1000 (7th Cir. 2007); United States v. Romero, 469
F.3d 1139, 1153 (7th Cir. 2006).

      We AFFIRM the judgment of the district court.
