                       NONPRECEDENTIAL DISPOSITION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

                                     June 1, 2007


                                       Before

                   Hon. RICHARD D. CUDAHY, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge


Nos. 03-1322, 03-1323 & 03-1477

UNITED STATES OF AMERICA,                       Appeals from the United States
          Plaintiff- Appellee,                  District Court for the Northern District
                                                of Illinois, Eastern Division.
      v.
                                                No. 01 CR 543
SEDGWICK JOHNSON, KALONJI
MCMILLIAN, and RAYMOND                          James F. Holderman,
COOPER,                                         Chief Judge.
         Defendants-Appellants.


                                    ORDER

       After concluding that the convictions of Sedgwick Johnson, Kalonji McMillian,
and Raymond Cooper should be affirmed, we ordered a limited remand so that the
district court could determine whether the sentence remained appropriate after United
States v. Booker, 125 S. Ct. 738 (2005), relegated the United States Sentencing
Guidelines to advisory status. See United States v. Paladino, 401 F.3d 471 (7th Cir.
2005).

      The district court judge has replied that it would impose the same sentence,
even knowing that the Guidelines are not mandatory. Therefore, “we will affirm the
Nos. 03-1322, 03-1323, & 03-1477                                                  Page 2



original sentence against [the] plain error challenge provided the sentence is
reasonable, the standard of review prescribed by Booker, 125 S. Ct. at 765.” Paladino,
401 F.3d at 484.

        Although the Supreme Court granted certiorari in Rita v. United States, No. 05-
4674, 2006 WL 1144508 (May 4, 2006), cert granted 127 S. Ct. 551 (2006), to determine
whether it is consistent with Booker to accord a presumption of reasonableness to
within-Guidelines sentences, the presumption of reasonableness accorded to such
sentences reflects the current state of the law in our circuit. See United States v.
Gama-Gonzales, 469 F.3d 1109, 1110-11 (7th Cir. 2006); United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). Here, each appellant received a sentence within the
now-advisory Guidelines range. As a career offender, Johnson’s range was 360 months
to life, and the district court sentenced him to 360 months. The range applicable to
McMillian was 188 to 235 months, and the district court sentenced him to 204 months.
For Cooper, the sentencing range was 324 to 405 months, and he received a sentence
of 360 months.

       The appellants raise several arguments in response to the district court’s
statement that it would reimpose the same sentences. First, the appellants contend
that the government failed to prove that the cocaine base in this case was actually
crack. It is true that “not all cocaine base is crack.” United States v. Edwards, 397
F.3d 570, 571 (7th Cir. 2005). In our circuit, for purposes of the mandatory minimum
sentence in 28 U.S.C. § 841(b)(1)(A)(iii), the term “cocaine base” refers to cocaine base
that constitutes crack. Id. at 577. The appellants, however, did not raise this argument
at the time of the initial sentencing or on direct appeal. By failing to raise this
challenge at the time of their initial sentencing or on direct appeal, the appellants lost
the opportunity to bring it now, and they cannot use our limited remand as a vehicle
to do so. See United States v. Morris, 249 F.3d 894, 898 (7th Cir. 2001) (“[P]arties
cannot use the accident of a remand to reopen waived issues.”); see also United States
v. Duncan, 427 F.3d 464, 465 (7th Cir. 2005) (only question on a Paladino limited
remand is whether district court would have imposed the same sentence knowing the
Guidelines are advisory). Similarly, Johnson’s argument that the district court should
not have examined the Presentence Investigation Report when it determined that he
was a career offender does not entitle him to relief. Johnson did not raise this
argument at the initial sentencing or on direct appeal, and he is precluded from
bringing it now. See Morris, 249 F.3d at 898.

       Next, Johnson and McMillian maintain that their sentences are unreasonable
because the Guidelines punish offenses involving crack cocaine more severely than
those involving powder cocaine. We have previously rejected this argument, and it
does not succeed under our circuit’s case law. United States v. Miller, 450 F.3d 270,
Nos. 03-1322, 03-1323, & 03-1477                                                Page 3



275 (7th Cir. 2006); United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005).
McMillian also takes issue with the drug quantities attributable to him. In a special
verdict, the jury found that McMillian was responsible for more than 500 grams of
powder cocaine and more than 50 grams of crack cocaine. McMillian maintains that
the district court impermissibly found at sentencing that McMillian was responsible
for more than one kilogram of powder cocaine and one kilogram of crack cocaine, as he
contends that conclusion is at odds with the jury’s determination. But the jury’s
special verdict form indicated that it found McMillian responsible for “more than” 500
grams of powder cocaine and “more than” 50 grams of crack cocaine, so the district
court’s conclusion that McMillian was responsible for a higher quantity is not
inconsistent with the jury’s determination. Moreover, we have repeatedly rejected
arguments that Booker precludes a judge from making factual findings at sentencing
that have the effect of increasing a Guidelines range. See, e.g., United States v.
Harrison, 431 F.3d 1007, 1014 (7th Cir. 2005). McMillian also maintains that the
district court should have undertaken on remand a comparative analysis of the
sentence it initially imposed and the sentence it would have imposed under an advisory
Guidelines scheme. We find, however, that the district court met its obligation with
respect to each of the defendants. The district court evaluated each defendant’s
sentence in light of the factors listed in 28 U.S.C. § 3553(a) and ultimately concluded
that it would reimpose the same sentence if called to resentence. No more was
required. See United States v. Dean, 414 F.3d 725, 728-29 (7th Cir. 2005).

      Accordingly, the judgment of the district court is AFFIRMED.
