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

No. 04-1196
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

ROBERT MYKYTIUK,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 03 CR 78—John C. Shabaz, Judge.
                        ____________
     SUBMITTED MAY 31, 2005—DECIDED JULY 7, 2005
                    ____________



 Before POSNER, ROVNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. On January 14, 2004, Robert
Mykytiuk was convicted of possessing pseudoephedrine with
intent to manufacture methamphetamine, see 21 U.S.C.
§ 841(c)(2), and for possessing a firearm in furtherance of
drug trafficking, see 21 U.S.C. § 924(c)(1)(A). Understand-
ably treating the Sentencing Guidelines as mandatory, the
district court enhanced Mykytiuk’s sentence on the basis of
facts found by a preponderance of the evidence, ultimately
imposing a 150-month sentence. While we affirmed
Mykytiuk’s conviction on April 1, 2005, we concluded that
the Supreme Court’s decision in United States v. Booker,
2                                               No. 04-1196

125 S.Ct. 738 (2005), required one more step before we
could rule on his sentence. Like many defendants, Mykytiuk
did not raise a Booker-like objection to his sentence before
the district court, and so the plain error standard of review
applies at this point. Following the procedures outlined in
United States v. Paladino, 401 F.3d 471, 481 (7th Cir.
2005), we ordered a limited remand to the district court to
see whether it was inclined to change the sentence now that
it is clear that the Sentencing Guidelines are advisory only.
See United States v. Mykytiuk, 402 F.3d 773 (7th Cir. 2005).
The district court has now informed us that it is not
disposed to change the sentence. Under these circum-
stances, “we will affirm the original sentence against a
plain-error challenge provided that the sentence is reason-
able, the standard of appellate review prescribed by Booker,
125 S.Ct. at 765.” Paladino, 401 F.3d at 484. We asked the
parties to address this final component of the Paladino
plain error equation—the reasonableness of Mykytiuk’s
sentence—and now having received those responses, we
find Mykytiuk’s sentence reasonable.
  We write here to explain briefly how we have reached that
conclusion. The Sentencing Guidelines represent at this
point eighteen years’ worth of careful consideration of the
proper sentence for federal offenses. When the Supreme
Court directed the federal courts to continue using the
Guidelines as a source of advice for proper sentences, it ex-
pected that many (perhaps most) sentences would continue
to reflect the results obtained through an application of the
Guidelines. But “many or most” sentences cannot mean “all”
sentences. Put differently, Booker does not hold that a
Guidelines sentence must conclusively be presumed to be
reasonable. See United States v. Crosby, 397 F.3d 103, 115
(2d Cir. 2005) (finding that a per se rule would “risk being
invalidated as contrary to the Supreme Court’s holding in
Booker/Fanfan, because [that] would effectively re-institute
mandatory adherence to the Guidelines.”). This fact is
No. 04-1196                                                3

reflected in our Paladino opinion, which reserved review of
the reasonableness of even those sentences that fall within
a properly calculated Guidelines range.
  But while a per se or conclusively presumed reasonable-
ness test would undo the Supreme Court’s merits analysis
in Booker, a clean slate that ignores the proper Guidelines
range would be inconsistent with the remedial opinion. As
Booker held, “the district courts, while not bound to apply
the Guidelines, must consult those Guidelines and take
them into account when sentencing.” Booker, 125 S.Ct. at
767. The Guidelines remain an essential tool in creating a
fair and uniform sentencing regime across the country. “The
Sentencing Commission will continue to collect and study
[district court] and appellate court decisionmaking. It will
continue to modify its Guidelines in light of what it learns,
thereby encouraging what it finds to be better sentencing
practices.” Id. at 766. The best way to express the new
balance, in our view, is to acknowledge that any sentence
that is properly calculated under the Guidelines is entitled
to a rebuttable presumption of reasonableness.
  This is a deferential standard, as our many post-Booker
orders already have reflected. See, e.g., United States v.
Mitra, No. 04-2328, 2005 WL 1390278 (7th Cir. 2005);
United States v. Applewhite, No. 04-1362, 2005 WL 1353623
(7th Cir. 2005); United States v. Ohlinger, No. 03-3380,
2005 WL 1353682 (7th Cir. 2005). The defendant can rebut
this presumption only by demonstrating that his or her
sentence is unreasonable when measured against the
factors set forth in § 3553(a). See Booker, 125 S.Ct. at 766
(noting that the factors in § 3553(a) “will guide appellate
courts, as they have in the past, in determining whether a
sentence is unreasonable.”). While we fully expect that it
will be a rare Guidelines sentence that is unreasonable, the
Court’s charge that we measure each defendant’s sentence
against the factors set forth in § 3553(a) requires the door
to be left open for this possibility.
4                                                No. 04-1196

  In this case, the district court arrived at Mykytiuk’s 150-
month sentence through a proper application of the Guide-
lines. Earlier misconduct placed Mykytiuk in Criminal
History Category II and, based on the circumstances of his
drug and firearm possession, the district court properly
lengthened Mykytiuk’s sentence by a number of months.
See U.S.S.G. § 2D1.1(b)(6)(B) (enabling an increase of three
levels to a defendant’s Base Offense Level if the manufac-
ture of methamphetamine created a substantial risk of
harm to human life). On the limited Paladino remand, the
court considered the relevant factors in § 3553(a) and found
that they did not necessitate a shortening of Mykytiuk’s
sentence. Since Mykytiuk has offered nothing to indicate
that his sentence offends the § 3553(a) factors, he has failed
to rebut the presumption that his Guidelines sentence is
reasonable.
  Because the district court would have imposed the same
sentence post-Booker as it did pre-Booker and because that
sentence is reasonable, Mykytiuk cannot meet the third
plain error element; namely, that the changes wrought by
Booker “affect[ed his] substantial rights.” Johnson v.
United States, 520 U.S. 461, 466-67 (1997). Accordingly, we
find Mykytiuk’s sentence was not the result of plain error,
and we hereby AFFIRM that sentence.

A true Copy:
       Teste:

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




                    USCA-02-C-0072—7-7-05
