                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53


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

                                   April 17, 2006

                                      Before

                          Hon. WILLIAM J. BAUER, Circuit Judge

                          Hon. ILANA DIAMOND ROVNER, Circuit Judge

                          Hon. TERENCE T. EVANS, Circuit Judge


No. 04-1268
                                             Appeal from the United States District
UNITED STATES OF AMERICA,                    Court for the Northern District of
    Plaintiff-Appellee,                      Illinois, Eastern Division

      v.                                     No. 02 CR 80

JESSE MARTINEZ,                              Harry D. Leinenweber,
     Defendant-Appellant.                    Judge.


                                    ORDER

       In light of our decision to allow Jesse Martinez to belatedly file an argument
regarding the reasonableness of his sentence, we vacate our order of March 20,
2006, and replace it with this order, which also serves as a partial grant of his
petition for rehearing filed on March 23, 2006. We remanded this case under
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), in order to ask the district
judge whether he would have imposed a lesser sentence on Jesse Martinez had he
known at the time of sentencing that the federal sentencing guidelines are advisory
rather than mandatory. See United States v. Booker, 543 U.S. 220 (2005). After
reviewing written arguments from both parties, the district court concluded that
the original sentence remained appropriate. We invited both parties to comment on
the reasonableness of the sentence, and we now affirm.
No. 04-1268                                                                    Page 2

        Martinez pleaded guilty to distributing crack cocaine in violation of 21
U.S.C. § 841(a)(1). The district court imposed a sentence of 188 months, the bottom
of the range of 188-235 months, which was calculated based on adjustments for
Martinez’s status as a career offender, see U.S.S.G. § 4B1.1(b), and his acceptance of
responsibility, see U.S.S.G. § 3E1.1. Martinez did not challenge the calculation of
the guideline range, so we accept it as properly calculated and therefore
presumptively reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Martinez may rebut the presumption by establishing that the sentence
is unreasonable when measured against the factors set forth in 18 U.S.C. § 3553(a).
See id.

       Martinez now argues that his sentence is unreasonable because his base
offense level under the guidelines was 34 instead of 32 because his crime involved
crack rather than powder cocaine. According to Martinez, sentences for offenses
involving crack cocaine that do not account for the disparity are unreasonable
because they overstate the seriousness of the crime, provide “more than just
punishment for the offense,” and fail “to promote respect for the law.” But we have
already held that a sentencing court is not required to take the differential into
account. United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005) (per curiam).

       Martinez also takes issue with the district court’s “refusal to consider” his
argument regarding the disparity between sentences for crack and powder cocaine
offenses, contending that the court’s failure to comment on his argument renders
the sentence unreasonable. We cannot agree that the court “refused to consider”
the argument; the more likely inference given the parties’ written submissions is
that the court considered and rejected the invitation to impose a lesser sentence
based on this factor. Martinez cites United States v. Cunningham, 429 F.3d 673
(7th Cir. 2005) for the proposition that the district court cannot ignore arguments
made by the defendant. Cunningham, however, holds only that district courts
should consider arguments “of recognized legal merit,” id. at 679. Given our holding
in Gipson, the district court was not obligated to specifically discuss Martinez’s
argument regarding the disparity between crack and powder. Moreover,
Cunningham is not particularly helpful here. Cunningham lays out what we
require of district courts when sentencing defendants after Booker; it does not
address a district court’s obligations in a limited Paladino remand. The district
court complied with the procedures set forth in Paladino: it obtained the views of
counsel in writing and, upon reaching its conclusion, placed in the record a decision
not to resentence with an appropriate, albeit brief, explanation. See Paladino, 401
F.3d at 484; Mykytiuk, 402 F.3d at 779; United States v. Bianucci, 416 F.3d 651,
658 (7th Cir. 2005). Martinez was entitled to no more.
No. 04-1268                                                             Page 3

     In light of this amended order, Martinez’s petition for rehearing is
GRANTED in part and DENIED in part. The judgment of the district court is
AFFIRMED.
