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

Nos. 03-2345 & 03-2915
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                  v.

CLARENCE HANKTON and
GREGORY DAVIS,
                                      Defendants-Appellants.
                           ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 01 CR 1—Charles R. Norgle, Sr., Judge.
                           ____________
      SUBMITTED MAY 8, 2006—DECIDED AUGUST 18, 2006
                       ____________


    Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
  COFFEY, Circuit Judge. In November of 2002, Clarence
Hankton and Gregory Davis each pled guilty to possessing,
with the intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1).1 After conducting a sentencing hearing,
during which the government introduced a plethora of
evidence concerning the drug and gang activities of both
defendants, the district judge sentenced Hankton to a term
of 300 months and Davis to 210 months. Both men ap-


1
  In the case of Hankton, cocaine base, commonly known as
“crack” cocaine.
2                                   Nos. 03-2345 & 03-2915

pealed, see United States v. Hankton, 432 F.3d 799 (7th Cir.
2005), and while we affirmed each of their sentences, we
remanded their cases to the district court in accordance
with United States v. Paladino, 401 F.3d 471, 481 (7th Cir.
2005). The district judge has replied stating that he would
have given Hankton and Davis the same sentences notwith-
standing the now-advisory nature of the Guidelines. United
States v. Hankton and Davis, No. 01-CR-1 (April 21, 2006);
see United States v. Booker, 125 S.Ct. 738, 757 (2005). We
invited the parties to file arguments concerning the reason-
ableness of the sentences, however, only Davis and the
government responded. Nevertheless, we affirm both of the
defendants-appellants’ sentences as reasonable. See United
States v. Newsome, 428 F.3d 685, 686 (7th Cir. 2005);
Paladino, 401 F.3d 484.
  Our review of a district judge’s sentencing determina-
tion is deferential, and we will not substitute our judgement
for that of the trial judge when dealing with the question of
what sentence should have been imposed on the defendant.
See United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005). In addition, a sentence that is within a properly
calculated Guidelines range is presumptively reasonable.
See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005) An appellant may rebut this presumption of reason-
ableness by demonstrating that his sentence would be
unreasonable when measured against the factors set forth
in 18 U.S.C. § 3553(a), such as the “need for the sentence
imposed—(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment
for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” Id.
(citing Booker, 543 U.S. at 766).
Nos. 03-2345 & 03-2915                                            3

      I. REASONABLENESS OF HANKTON’S SENTENCE
  As our earlier opinion in this case makes clear, the
sentencing judge properly applied the Guidelines when
calculating Hankton’s sentence, see Hankton, 432 F.3d at
790-97, and accordingly his sentence as imposed is consid-
ered presumptively reasonable. See Hankton, 432 F.3d at
789-97; Mykytiuk, 415 F.3d at 608. Hankton has declined
our invitation to explain why and how the district court’s
analysis should be considered insufficient to support his
sentence or why the sentence he received was unreasonable
when measured against the § 3553(a) factors. Further,
while informing us that he would have given Hankton the
same sentence had the Guidelines been advisory, the
district judge properly referenced a number of the factors
enumerated in 18 U.S.C. § 3553(a) as integral to his
decision not to sentence Hankton differently.2
  Thus, because the sentencing judge has advised us that
he would have imposed the same sentence post-Booker, and
due to the fact that Hankton has failed to rebut the pre-
sumption that his sentence is reasonable, he has failed to
establish plain error. See id. (citing Johnson v. United
States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d
718 (1997)).


       II. REASONABLENESS OF DAVIS’S SENTENCE
  Unlike Hankton, Davis did accept our invitation to inform
this court why he believes his sentence, as imposed, is


2
  Specifically, the trial judge noted Hankton’s role as the “King of
Kings” in “a violent Chicago street gang heavily involved in the
purchase and sale of cocaine.” This, the judge reasoned, warranted
a 300 month sentence in order to “reflect the seriousness of
Hankton’s crimes, promote respect for the law, and protect the
public from future crimes [by] Hankton.”
4                                    Nos. 03-2345 & 03-2915

unreasonable. In his brief to this court, Davis claims that
his sentence is unreasonable for a number reasons, all of
which are easily dismissed.
  Davis initially claims that the district court “misunder-
stood its authority under Booker.” He attempts to support
this bold assertion by citing the sentencing judge’s state-
ment that he failed to “overcome the rebuttable presump-
tion that his sentence is reasonable.” However, this court
specifically held in United States v. Mykytiuk, that “any
sentence that is properly calculated under the Guidelines is
entitled to a rebuttable presumption of reasonableness.” 415
F.3d at 608. Indeed, the sentencing judge cited Mykytiuk in
reaching its conclusion that Davis had neither established
that his sentence had been improperly calculated nor that
the presumption of reasonableness had been overcome. The
district court’s analysis was directly in line with our holding
in Mykytiuk. See id.
  Davis attempts to bolster his argument by arguing that
Mykytiuk should not be considered binding on a sentenc-
ing court, stating that, in Mykytiuk “this court only decided
that a Guidelines sentence is presumed to meet the appel-
late standard for review for reasonableness.” However, the
presumption that a correctly calculated Guidelines sentence
is reasonable not only applies to the appellate standard of
reasonableness review, but also guides a district judge’s
consideration of an appropriate sentence. It is only when
the defendant provides cogent reasons under 18 U.S.C.
§ 3553(a) that a sentencing judge need consider a non-
Guidelines sentence. See Dean, 414 F.3d 729-30.
  Next, Davis argues that the district court “refused to
consider [his] argument that the 18 U.S.C. § 3553[(a)]
factors support a sentence outside the career offender
Guideline range.” We disagree. Even a cursory review of the
sentencing judge’s order on remand reveals that the court
thoroughly considered the § 3553(a) factors and, in fact, did
Nos. 03-2345 & 03-2915                                          5

more than was required of him under the circumstances.
See United States v. Hankton, No. 01-CR-1, at *8-9 (N.D.Ill.
Apr. 21, 2006); United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005) (stating that: “Judges need not
rehearse on the record all of the considerations that 18
U.S.C. § 3553(a) lists; it is enough to calculate the range
accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.”). What’s more, to the
extent that this argument is a collateral attack on Davis’s
sentence, it fails; for we affirmed the validity of his sentence
under the Guidelines in our previous decision. See Hankton,
432 F.3d at 789-96.
  In an equally unavailing argument, Davis avers that the
district court “incorrectly found that it lacked the authority
to impose a non-Guidelines sentence on the basis of the dis-
parity between sentences for crack and powder cocaine.”
This argument is foreclosed by this court’s recent decision
in United States v. Miller, ___ F.3d ___, 2006 WL 1541426,
*4-6 (7th Cir. 2006). In Miller we held a district judge is
required to abide by the 100-to-1 crack cocaine to cocaine
powder ratio when applying the sentencing Guidelines to a
defendant’s conduct. Id. at *4; (following United States v.
Pho, 433 F.3d 53 (1st Cir. 2006); United States v. Eura, 440
F.3d 625 (4th Cir. 2006)). Said differently, a sentencing
judge may not depart downward based merely on his opin-
ion that the statutory and/or Guidelines disparity between
punishments for crack cocaine and powder cocaine is unjust
or unwarranted. See id. at *5. Accordingly, Davis’s argu-
ment fails, for Judge Norgle did exactly what he should
have done according to Miller, he categorically refused to
consider Davis’s argument in favor of a downward depar-
ture based solely on the disparity between crack cocaine
and cocaine powder in the Guidelines.3


3
  In a tag-along argument, Davis claims that the “district court
incorrectly held this court had determined that the statements in
                                                    (continued...)
6                                      Nos. 03-2345 & 03-2915

   Finally, Davis reaches his arguments as to why the
district court should have issued a non-Guidelines sentence
based on the factors enumerated in § 3553(a).4 The main
thrust of Davis’ argument concerning § 3553(a) is that the
district court’s sentencing determination should be found
unreasonable due to the fact that his crimes were “the
result of his addiction to marijuana and alcohol.” The
problem is, evidence of pre-existing drug and alcohol
addiction, without more, is insufficient to render a sentence
within a properly calculated Guidelines range unreason-
able. Were this not the case, every convicted criminal who
had used or abused drugs and drink at some time and was
not given a reduction under the Guidelines could challenge
his sentence as unreasonable on those grounds alone. This
is most assuredly not what Congress had in mind when
they passed 18 U.S.C. § 3553(a). The same can be said for
Davis’s other § 3553(a) arguments as well. He claims he
was, at times, “responsible, held legitimate employment, .
. . tried to help his friends and family . . . [and] was a good
father when he was able to be there for his children.” These


3
  (...continued)
the plea agreements of Mr. Davis’ co-defendants were reliable.”
What we actually held was that the plea agreements, along with
the plethora of other evidence adduced at sentencing was enough
to support the sentence the district court imposed on Davis. See
Hankton, 435 F.3d 792-93. The district judge was correct not to re-
visit this issue and we decline the invitation to do so here.
4
  As part of his argument, Davis advances the ridiculous notion
that the district judge, by applying the rebuttable presumption in
Mykytiuk, considered the Guidelines to be mandatory. Suffice to
say, the district court did no such thing. Also, while we see no
reason to re-visit or expound on our holding in Mykytiuk, we
dismiss out of hand Davis’ assertion in his brief that Mykytiuk
“sends the message that a sentence within the Guidelines
will never be reversed . . . .” Our holding in Mykytiuk implies no
such thing. A “rebuttable presumption” is just that, “rebuttable.”
Nos. 03-2345 & 03-2915                                     7

arguments likewise do nothing to overcome the fact that
Davis was convicted of a serious drug crime. As the sentenc-
ing judge noted “Davis attained the rank of ‘Sultan Su-
preme’ in the [Mickey Cobras gang], and participated
heavily in the purchase and sale of crack cocaine.” We agree
with the district court’s conclusion that Davis’s sentence
“reflects the seriousness of [his] offense, promotes respect
for the law, and protects the public from further crimes.”


                     III. CONCLUSION
  Because the sentencing judge stated that he would have
imposed the same sentence post-Booker and due to the fact
that Hankton and Davis’ sentences are reasonable, they
have failed to establish plain error. See id. (citing Johnson
v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137
L.Ed.2d 718 (1997)). Accordingly, we AFFIRM the judg-
ment of the district court.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—8-18-06
