                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                              Argued June 16, 2004
                            Decided December 14, 2005


                                       Before

                          Hon. JOHN L. COFFEY, Circuit Judge

                          Hon. KENNETH F. RIPPLE, Circuit Judge

                          Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 03-2647

UNITED STATES OF AMERICA,                       Appeal from the United States District
              Plaintiff-Appellee,               Court for the Western District
                                                of Wisconsin.
      v.
                                                No. 03 CR 4
TERRY L. MORTIER,
            Defendant-Appellant.                John C. Shabaz, Judge.


                                     ORDER

       Terry Mortier entered into a plea agreement with the Government, according
to which Mr. Mortier agreed to plead guilty to one count of possession with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §
841(a)(1). As part of his plea agreement, Mr. Mortier reserved the right to appeal the
denial of his motion to suppress evidence.

       At sentencing, the district court made findings of fact with respect to Mr.
Mortier’s probation status and with respect to the amount of methamphetamine and
cocaine that Mr. Mortier had distributed, which constituted relevant conduct to the
offense to which Mr. Mortier had pleaded guilty. The district court sentenced Mr.
Mortier to 135 months’ imprisonment--a sentence within the guideline range for Mr.
Mortier’s offense level (including relevant conduct) and criminal history category.
No. 03-2647                                                                        Page 2

       Mr. Mortier was unsuccessful in his appeal, and petitioned for certiorari. The
Supreme Court vacated the judgment in light of United States v. Booker, 125 S. Ct. 738
(2005) (holding that the mandatory nature of the United States Sentencing Guidelines
impermissibly resulted in violations of the Sixth Amendment right to a jury trial and
rendering the guidelines advisory). We, in turn, remanded the case to the district court
pursuant to our decision in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for
the district court to advise us whether, if the court had understood the Guidelines to
be advisory as opposed to mandatory, the sentence imposed on Mr. Mortier would have
been different.

       Pursuant to our remand order, the district court, after considering the views of
the parties, indicated that, had the Guidelines been advisory, it would have sentenced
Mr. Mortier to the same 135-month sentence. In its Paladino statement, the district
court indicated that it considered the large quantity of methamphetamine and cocaine
to be a factor in sentencing Mr. Mortier. As well, the court was influenced by the fact
that Mr. Mortier was on probation for another felony drug offense when he committed
the crime for which he was being sentenced. The court believed that a sentence at the
high end of the guideline range was necessary and appropriate to hold Mr. Mortier
accountable for his actions and also to protect the community from any further
criminal behavior by Mr. Mortier. The court also rejected Mr. Mortier’s argument that
he should be shown leniency because he initially had used the narcotics to control his
pain resulting from cancer and had become addicted; the district court determined
these mitigating factors are counterbalanced by the need both to hold Mr. Mortier
accountable for his actions, which included distributing large amounts of
methamphetamine, and to deter further criminal behavior.

      After receiving the district court’s Paladino statement, we invited additional
comment from the parties. The Government availed itself of this opportunity; Mr.
Mortier, however, has made no further submissions to this court.

       Booker instructs us to review the district court’s sentencing determination for
reasonableness. Booker, 125 S. Ct. at 767. However, Booker also anticipates that, in
arriving at a sentence, district courts will continue to look to the Guidelines in reaching
appropriate sentences. See id. We have recognized that “[t]he Guidelines remain an
essential tool in creating a fair and uniform sentencing regime across the country.”
United States v. Mykytuik, 415 F.3d 606, 608 (7th Cir. 2005). Thus, “any sentence that
is properly calculated under the Guidelines is entitled to a rebuttable presumption of
reasonableness.” Under this deferential standard, a defendant “can rebut this
presumption only by demonstrating that his or her sentence is unreasonable when
measured against the factors set forth in [28 U.S.C.] § 3553(a).” Id. Theoretically, a
sentence within the applicable guideline range can be unreasonable, but we have
recognized that “it will be a rare” occurrence. Id.

      In the present case, Mr. Mortier does not contest the calculation of his sentence
No. 03-2647                                                                   Page 3

under the Guidelines, nor does he claim that his sentence is unreasonable in light of
the considerations set forth in § 3553. The presumption of reasonableness, therefore,
has not been rebutted, and we affirm the 135-month sentence imposed by the district
court.

                                                                        AFFIRMED
