                                  UNPUBLISHED ORDER
                               Not to be cited per Circuit Rule 53




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

                                 Submitted November 3, 20051
                                 Decided December 15, 2005

                                            Before

                              Hon. JOEL M. FLAUM, Chief Judge

                              Hon. FRANK H. EASTERBROOK, Circuit Judge

                              Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 05-2431

UNITED STATES OF AMERICA,                             Appeal from the United States District
              Plaintiff-Appellee,                     Court for the Northern District
                                                      of Illinois, Eastern Division.
       v.
                                                      No. 01-CR-57
VICTOR H. CONTRERAS,
            Defendant-Appellant.                      David H. Coar,
                                                      Judge.



                                          ORDER

       In this successive appeal, appellant Victor Contreras claims that the district
court’s imposition of 235 months’ sentence was unreasonable because it failed to place
sufficient weight on the fact that Contreras had not been convicted of a prior crime.


       1
         This successive appeal has been submitted to the panel that decided the original appeal.
See Operating Procedure 6(b). After examining the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed.
R. App. P. 34(a)(2).
No. 05-2431                                                                        Page 3

We disagree and affirm the sentence imposed by the district court.
       The background facts of this case are detailed extensively in our earlier opinion
in United States v. Macedo, 371 F.3d 957 (7th Cir. 2004), amended by 406 F.3d 778 (7th
Cir. 2005). Contreras was convicted of conspiring to import, attempting to possess, and
possessing large amounts of methamphetamine. On remand for resentencing, the
district court sentenced Contreras to 235 months’ imprisonment, which is a sentence
at the lower end of the United States Sentencing Guidelines’ advisory range of 235 to
293 months. A sentence within the properly calculated Sentencing Guidelines range
is presumptively reasonable, but an appellant can rebut this presumption by
demonstrating that his sentence is unreasonable when measured against the factors
set forth in 18 U.S.C. § 3553(a). See United States v. Mykytiuk, 415 F.3d 606, 607 (7th
Cir. 2005).
       Here, Contreras claims that the district court unreasonably rejected his
argument that his lack of a prior criminal history entitled him to a sentence below the
advisory Sentencing Guidelines range. Specifically, Contreras complains that the
district court improperly considered testimony from a police officer who stated that
Contreras purchased drugs on two prior occasions in 1992. As an initial matter,
Contreras does not contend that the district court could not consider this type of
information for sentencing purposes. Nor could he; it is well-settled that a district
court judge can consider reliable evidence of prior unconvicted conduct for the purposes
of sentencing, and Contreras does not contend that the police officer’s testimony was
unreliable. See, e.g., United States v. Carter, 111 F.3d 509, 514 (7th Cir. 1997).
       Instead, Contreras contends that the district court improperly disregarded the
“presumption of innocence with regard to crimes which he has not been convicted of”
and impermissibly placed a “burden of production and proof” on Contreras to disprove
this prior conduct. The sentencing transcript, however, does not support Contreras’s
contention. Instead, the district court merely noted that there was evidence in the
record tending to show that Contreras had engaged in prior criminal acts. Contreras’s
argument might have more traction here if he could show that the district court took
affirmative adverse action based on this disputed evidence, such as imposing a
sentence above the advisory Sentencing Guidelines range, or perhaps even one higher
within the applicable range. But here, there is no indication that the district court
relied on the challenged testimony to penalize Contreras.
       Contreras’s principal argument boils down to the contention that his lack of
prior convictions should have been afforded additional weight, beyond that which the
Guidelines inherently provide under a Criminal History Category of I. Indeed, for
Contreras to prevail, he must show that the only reasonable outcome was for the
district court not only to disregard entirely the police officer’s testimony, but also find
Contreras’s history compelling enough to require a sentence below the advisory
Sentencing Guidelines range. But even if Contreras’s past was entirely unblemished
by any allegations of prior criminal conduct, he would still face an uphill climb in light
No. 05-2431                                                                   Page 3

of the presumptive reasonableness that attaches to sentences within the Sentencing
Guidelines range. See Mykytiuk, 415 F.3d at 607. In any event, under the
circumstances here (where there was compelling evidence of prior unconvicted criminal
conduct) we cannot conclude that the district court’s sentence was unreasonable.
              Accordingly, we AFFIRM the judgment of the district court.
