                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-1781
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

MILO FARRIS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 04 CR 3—James F. Holderman, Judge.
                          ____________
    ARGUED FEBRUARY 7, 2006—DECIDED MAY 25, 2006
                   ____________


  Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  BAUER, Circuit Judge. Milo Farris pleaded guilty to two
counts of sending threatening communications through the
U.S. mail. The district court sentenced him to consecu-
tive terms of sixty months on both counts. Farris challenges
the total sentence of 120 months on due process
and reasonableness grounds. We affirm.


                        I. Background
  Farris and his family live in a Chicago neighborhood with
a high level of gang and drug activity. After the police failed
to satisfy him with their response to his concerns about
local crime, Farris mailed letters to the principals of five
2                                               No. 05-1781

different Chicago schools. Sent between September 15 and
17, 2003, the letters contained threats to kill unnamed
students and one unnamed teacher. Each letter bore the
return address of a residence where Farris had observed
drug trafficking. In response to the threats, the schools
suspended all outdoor activity, increased security, formu-
lated alternate evacuation plans, detailed teachers to assist
students’ arrival and departure, and directed that the
principals personally open all mail. These precautionary
measures remained in effect for two weeks.
  On March 31, 2004, the grand jury returned a five-count
indictment against Farris for sending threatening com-
munications through the U.S. mail, in violation of 18 U.S.C.
§ 876(c). Count One charged him with mailing to one school
a threat to injure a student and a teacher. Counts Two
through Five charged him with mailing to four other schools
a threat to kill one student. On May 7, 2004, Farris pleaded
guilty to Counts One and Two and stipulated to committing
the offenses charged in Counts Three, Four, and Five.
  At the March 15, 2005, sentencing hearing, the district
court imposed a four-level enhancement for substantial
disruption of public and governmental functions or services,
a two-level enhancement for the large number of vulnerable
victims, and a three-level enhancement for one victim’s
status as a government employee. The court sentenced
Farris to consecutive terms of sixty months for Counts One
and Two. He appealed the total sentence of 120 months’
imprisonment.


                      II. Discussion
  Farris claims on appeal that his sentence violates the Due
Process Clause of the Fifth Amendment because he was
sentenced post-Booker for pre-Booker criminal conduct. He
also claims that the sentence is unreasonable because the
district court failed to consider the appropriate sentencing
No. 05-1781                                                    3

factors and to provide a reasoned explanation of the
sentence.


A. Due Process
  Article I of the U.S. Constitution provides that neither
Congress nor the states shall pass an “ex post facto Law.”
See U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1. Although
the Ex Post Facto Clause limits the legislature instead of
the judiciary, “limitations on ex post facto judicial
decisionmaking are inherent in the notion of due process.”
Rogers v. Tennessee, 532 U.S. 451, 456 (2001). In the context
of judicial decisionmaking, a defendant has “a right to fair
warning of that conduct which will give rise to criminal
penalties.” Marks v. United States, 430 U.S. 188, 191 (1977).
Farris claims that the Supreme Court, in United States v.
Booker, 543 U.S. 220 (2005), altered sentencing law in a
manner detrimental to him and thereby violated his due
process right to fair warning. We review due process
challenges involving pure legal questions de novo. United
States v. Sasson, 62 F.3d 874, 889 (7th Cir. 1995).
  In September 2003, when Farris committed these crimes,
the U.S. Sentencing Guidelines were mandatory. See 18
U.S.C. § 3553(b)(1); see also United States v. Watts, 519 U.S.
148, 160 (1997) (Stevens, J., dissenting). In Apprendi v.
New Jersey, the Supreme Court held that “other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000). Based on the evident
application of Apprendi to the guidelines, Farris claims, the
highest possible penalty he faced in September 2003 was
forty-six months, the maximum sentence within the
applicable guidelines range based on his indictment and
without judicially-imposed sentencing enhancements.
4                                                No. 05-1781

Between Farris’s commission of the crimes and the sentenc-
ing hearing, the Supreme Court changed federal sentencing
law by rendering the guidelines advisory. See Booker, 543
U.S. at 232. Farris claims that the remedy of an advisory
guidelines regime, which permits district courts to sentence
defendants on the basis of facts neither stipulated to nor
found by a jury, unconstitutionally exposed him to a longer
maximum sentence than the one he faced in September
2003.
  As we have previously held, however, the remedial
holding in Booker does not support a due process claim
predicated on ex post facto principles. United States v.
Jamison, 416 F.3d 538, 539 (7th Cir. 2005). Farris disputes
the validity of Jamison, which rested on two main premises:
(1) that the Supreme Court expressly directed that Booker
should apply to cases on direct review; and (2) that the U.S.
Code provided sufficient fair warning of the possible
penalties. First, the Supreme Court expressly provided that
both its Sixth Amendment holding, applying Blakely to the
guidelines, and the remedial holding, rendering the guide-
lines advisory, applied “to all cases on direct review.”
Booker, 543 U.S. at 268. Accepting Farris’s position would
effectively negate the retroactive application of the remedial
holding because all defendants sentenced post-Booker for
pre-Booker crimes would then have a successful due process
claim requiring remand for resentencing. We decline “to
hold that the Supreme Court ordered us to violate the
Constitution.” United States v. Rines, 419 F.3d 1104, 1106
(10th Cir. 2005).
  Rather, the ex post facto principle inherent in due process
has been summarized as “giving people ‘fair warning’ of the
legal consequences that their actions will have.” United
States v. Paulus, 419 F.3d 693, 698 (7th Cir. 2005) (quoting
United States v. Lanier, 520 U.S. 259, 266 (1997)). Our fair
warning analysis focuses on the time that the defendant
No. 05-1781                                                5

engaged in the criminal acts. Id. (citing Lanier, 520 U.S. at
267). We held in Jamison that the remedial portion of
Booker could apply retroactively without constitutional
difficulty because the defendant had been given fair
warning that distributing cocaine was punishable by “up to
twenty years, as spelled out in the United States Code.” 416
F.3d at 539. Here, the particular combination of the crimes
committed, Farris’s criminal history, and the possible
applicable enhancements subjected him to a sentence
within a guidelines range of 100 to 125 months’ imprison-
ment under the U.S. Code. Farris understood and signed
the plea agreement, which specified that the Code provi-
sions then in effect applied to his sentencing. The agree-
ment also expressly referenced each of the offense level
enhancements later imposed by the district court, so that
Farris had fair warning of the possibility of higher sentence
that they entailed.
  Nonetheless, Farris claims that he also properly had
notice of the Sixth Amendment as construed by the
Apprendi Court. Reading the U.S. Code in light of Apprendi,
he argues, led him to believe that his highest possible
sentence was forty-six months. The Sixth Amendment
principle first announced in Apprendi, however, did not
apply to the U.S. Sentencing Guidelines until the Booker
decision in January 2005. That Apprendi may have fore-
shadowed Booker does not alter the established state of the
law in September 2003, when Farris committed the crimes.
At that time, Farris could have been certain about only one
fact of his sentencing: the 120-month statutory maximum,
which ultimately was the exact term to which he was
sentenced. See United States v. Lata, 415 F.3d 107, 112 (1st
Cir. 2005). Any other assumptions he made about guideline
calculations would have been far more indefinite. See id.
Although Farris’s application of the Apprendi reasoning to
the federal guidelines would have been prescient, it did not
negate the guidelines’ validity at the time of the crimes or
their applicability to his sentencing.
6                                                   No. 05-1781

  Farris essentially seeks the benefit of a state of law that
never existed; he wants “a sentence that comports with the
Sixth Amendment requirements of Booker, but wants to
avoid the possibility of a higher sentence under the reme-
dial holding of Booker.” Jamison, 416 F.3d at 539; see also
United States v. Dupas, 419 F.3d 916, 920 (9th Cir. 2005).
A person in Farris’s position on the date of the crimes, with
a post-Apprendi, pre-Blakely outlook, could not reasonably
be surprised by this sentence.1 Farris had fair notice, when
committing the crimes and when entering the plea, that his
sentence could be based on a judicial determination within
the applicable guidelines range. See Dupas, 419 F.3d at 921.
His due process claim fails.


B. Reasonableness
  It is undisputed that Farris’s sentence of 120 months was
within the properly calculated guidelines range and
is therefore entitled to a rebuttable presumption of rea-
sonableness. See United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). The defendant can rebut this presump-
tion only by demonstrating that the sentence is unreason-
able when measured against the factors in 18 U.S.C.
§ 3553(a). Id. Farris claims that the district court failed



1
  Every Court of Appeals to consider the issue has reached the
same conclusion. See United States v. Pennavaria, No. 04-3556,
2006 WL 1061956, at *4 (3d Cir. Apr. 24, 2006); United States v.
Alston-Graves, 435 F.3d 331, 343 (D.C. Cir. 2006); United States
v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005); United States v.
Egenberger, 424 F.3d 803, 806 (8th Cir. 2005); United States v.
Rines, 419 F.3d 1104, 1106-07 (10th Cir. 2005); United States v.
Dupas, 419 F.3d 916, 921 (9th Cir. 2005); United States v. Lata,
415 F.3d 107, 112 (1st Cir. 2005); United States v. Scroggins, 411
F.3d 572, 576 (5th Cir. 2005); United States v. Duncan, 400 F.3d
1297, 1308 (11th Cir. 2005).
No. 05-1781                                                  7

to consider applicable § 3553(a) factors and to provide a
sufficient statement of reasons for the sentence.
  After Booker, the district court must consider the factors
set forth in 18 U.S.C. § 3553(a) in determining what
sentence to impose. United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005). Despite Farris’s claim that the district
court did not list the factors that affected its decision, the
court was free to apply the factors “not in checklist fashion
but instead in the form of an adequate statement of the
judge’s reasons, consistent with § 3553(a), for thinking the
sentence he has selected is indeed appropriate for the
particular defendant.” Id. A fair reading of the record in
this case reveals that the court considered all of the infor-
mation presented by the parties, including the information
Farris claims was neglected.
  The short statement by the district court touched on the
nature and circumstances of the offense by stating “this was
a horrendous thing that you did for and to the community,
the parents of the children, the children, the administra-
tors, the teachers, it was a horrible thing.” See 18 U.S.C.
§ 3553(a)(1). Additionally, this statement spoke to the
seriousness of the offense and, by extension, the sentence
necessary for just punishment. See 18 U.S.C.
§ 3553(a)(2)(A). The court considered the defendant’s
history and characteristics, commenting that Farris demon-
strated “potential” with his high school graduation and
college matriculation. See 18 U.S.C. § 3553(a)(1). After
“looking at the circumstances, looking at [his] background,”
the court noted that Farris “used crime as a way of express-
ing [him]self, and [he] had done it before,” a reference to his
prior conviction for aggravated sexual abuse. By recom-
mending his participation in the sexual offender treatment
program and in mental health counseling, the court appreci-
ated the need for a sentence that provided Farris with
appropriate correctional treatment. See 18 U.S.C.
§ 3553(a)(2)(D). The factors considered were sufficient to
8                                                No. 05-1781

support the sentence; the court was not required to “write
a comprehensive essay applying the full panoply of peno-
logical theories and considerations, which is to say every-
thing invoked or evoked by § 3553(a).” Dean, 414 F.3d at
729.
  Farris next faults the district court for not including
intent in its analysis of the crimes’ seriousness. It is
undisputed that Farris never intended to carry out the
threats; his aim was to alert the police to neighborhood
crime. This argument has little import on these facts,
however, because the guidelines provide for the consider-
ation of intent as a separate enhancement. See U.S.S.G.
§ 2A6.1(b)(1) (“If the offense involved any conduct evidenc-
ing an intent to carry out such threat, increase by 6 levels”).
Because of the government’s decision not to seek this
enhancement, the process accounted for Farris’s lack of
intent. Additionally, some of the district court’s comments
at the sentencing hearing could be understood as taking
Farris’s intent into account. In recommending that Farris
participate in counseling, for instance, the court stated that
the treatment would assist “in determining what it really is
that caused you to do these horrendous acts.”
  Finally, Farris claims that the district court, in calculat-
ing his criminal history, improperly considered pending
state charges against him for predatory criminal sexual
assault, aggravated criminal sexual assault, criminal sexual
assault, and aggravated criminal sexual abuse. This
argument rests on the following comment by the court:
“I also recommend that you participate in the sexual
offender treatment program offered by the Bureau of
Prisons.” Although Farris construes this comment as
evidence that the court improperly considered the state
charges, this interpretation is problematic. First, Farris did
not object to the comment at the sentencing hearing.
Second, other aspects of Farris’s criminal history—namely,
his 1992 conviction for aggravated sexual abuse and the
No. 05-1781                                              9

alarming sexual letter to his niece—equally support a
recommendation of sex offender treatment. We cannot
presume from this record that the district court was
disingenuous; to the contrary, the facts provided a reason-
able relation between the § 3553(a) factors and the treat-
ment ordered.


                    III. Conclusion
  For the foregoing reasons, we AFFIRM the sentence
imposed by the district court.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-25-06
