In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 03-2089 & 03-2129
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDALL RE and ANTHONY CALABRESE,
Defendants-Appellants.
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Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 448—Charles P. Kocoras, Chief Judge.
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SUBMITTED JULY 6, 2005—DECIDED AUGUST 12, 2005
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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. On November 1, 2002, Anthony
Calabrese and Randall Re were convicted of conspiring to
commit extortion and conspiring to travel to commit ex-
tortion. After considering the relevant enhancements, the
district court sentenced both men to 87 months’ imprison-
ment for Count 1 and 60 months for Count 2, with the
sentences to run concurrently. Because the sentences were
imposed under a mandatory sentencing guidelines regime,
we ordered a limited remand in accordance with
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
2 Nos. 03-2089 & 03-2129
In a Paladino remand, this court retains jurisdiction over
the appeal and the district judge is instructed to “determine
whether he would (if required to resentence) reimpose his
original sentence. If so, we will affirm the original sentence
against a plain-error challenge provided that the sentence
is reasonable[.]” Id. at 484 (internal citation omitted). If,
however, the judge decides that he would have sentenced
the defendant differently under an advisory guideline
regime, we will vacate the original sentence and remand for
resentencing. Id.
In the course of this limited remand, the district court is
to consider the sentencing factors set out in 18 U.S.C.
§ 3553(a). “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.” United States v. George, 403 F.3d 470, 472-73 (7th Cir.
2005).
Here, Re and Calabrese argue that they should be resen-
tenced because the extraordinary progress they have both
made while incarcerated proves that 87-month sentences
are unjust. They presented the district court with evidence
of classes they have taken, good works they have done, and
letters from various friends and family members noting
that they have changed for the better while in prison and
asking the court to shorten their sentences.
Chief Judge Kocoras found that if he had known at the
time of sentencing that the guidelines were merely advi-
sory, he would have imposed the same sentences because of
the seriousness of the violent crimes committed by the
defendants. However, “[i]f post-sentencing events and con-
duct were properly to be considered, I cannot honestly say
whether or not the sentences imposed would remain the
same. In fact they may well not be. . . . [But if,] the record
Nos. 03-2089 & 03-2129 3
that was to be considered terminated at the time of the
original sentencing was considered, I think the sentence
would be the same.”
The purpose of the limited remand is to decide whether
the court committed plain error when it originally sen-
tenced the defendants. See Paladino, 401 F.3d at 483-84. If,
at that time, the judge would have chosen a different sen-
tence had he known that the guidelines were not manda-
tory, plain error occurred. Here, the district court correctly
excluded post-sentencing events and conduct and deter-
mined that it would have imposed the same sentence;
therefore, there is no prejudice, no plain error, and the orig-
inal sentence stands. Id. at 484. Having made that de-
termination, we must now review the sentence for reason-
ableness. See United States v. Booker, 125 S. Ct. 738, 765
(2005).
This court has held that “any sentence that is properly
calculated under the Guidelines is entitled to a rebuttable
presumption of reasonableness.” United States v. Mykytiuk,
No. 04-1196, 2005 WL 1592956, at *1 (7th Cir. July 7,
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).”
Id. at *2. The defendants “must be given an opportunity to
draw the judge’s attention to any factor listed in [§] 3553(a)
that might warrant a sentence different from the guidelines
sentence[.]” See United States v. Dean, No. 04-3172, 2005
WL 1592960, at *5 (7th Cir. July 7, 2005).
As we noted, however, in a Paladino remand the conduct
or circumstances that bear on the § 3553(a) factors must
have been in existence at the time the original sentence was
imposed. In this case, the § 3553(a) factors raised by the
defendants all involved matters occurring after the date of
sentencing. The goal of the Paladino remand is to deter-
mine if, at the time of sentencing, the district judge would
4 Nos. 03-2089 & 03-2129
have imposed a different sentence in the absence of manda-
tory guidelines. Post-sentencing events or conduct simply
are not relevant to that inquiry.
Re and Calabrese have not presented relevant evidence to
rebut the presumption that their sentences, which were
within the properly calculated guideline range, were rea-
sonable when imposed. Therefore, they “cannot meet the
third plain error element; namely, that the changes
wrought by Booker “affect[ed their] substantial rights.”
Mykytiuk, 2005 WL 1592956, at *2.
We AFFIRM the sentences of both Re and Calabrese.
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-12-05