                                   UNPUBLISHED ORDER
                               Not to be cited per Circuit Rule 53


                  United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604
                                  Submitted September 6, 2006
                                   Decided September 11, 2006

                                            Before

                      Hon. FRANK H. EASTERBROOK, Circuit Judge

                      Hon. DANIEL A. MANION, Circuit Judge

                      Hon. TERENCE T. EVANS, Circuit Judge


UNITED STATES OF AMERICA,                                    Appeal from the United States
      Plaintiff-Appellee,                                    District Court for the Northern
                                                             District of Illinois, Eastern
No.    06-1533                       v.                      Division.

MICHAEL FADEYI,                                              No. 00 CR 153
     Defendant-Appellant.                                    Matthew F. Kennelly, Judge.




                                             Order

        Fadeyi's conviction and most of his sentence were affirmed in 2004, although we
remanded for reconsideration of the forfeiture order. Before the appeal from the revised sentence
could be resolved, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005),
which led us to ask the district court whether recognition of additional discretion would have
affected the sentence. An affirmative answer led to another remand and a reduction in the term of
imprisonment from 151 to 132 months. Fadeyi has filed a third appeal.

        The only argument now advanced is that, even though Booker reduced the Sentencing
Guidelines to advisory status, the district court must use a reasonable-doubt standard when
resolving any contested factual issue. That argument is inconsistent with the intellectual
foundations of Booker, which held that the Constitution requires an elevated standard (and an
opportunity, here waived, for decision by a jury) on disputes that raise the "statutory maximum
No. 06-1533                                                                         Page 2


sentence." The remedial portion of Booker removed the Guidelines from the set of matters that
can change the statutory maximum. The burden of persuasion in federal sentencing accordingly is
the preponderance of the evidence. See, e.g., United States v. Bryant, 420 F.3d 652, 656 (7th Cir.
2005); United States v. Spence, 450 F.3d 691, 697 (7th Cir. 2006).

                                                                                   Affirmed
