NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2011
Decided September 27, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD , Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2799 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff‐Appellee, Western Division.
v. No. 07 CR 50044‐1
RICHARD A. LEE, Frederick J. Kapala,
Defendant‐Appellant. Judge.
O R D E R
Richard Lee pleaded guilty to possessing crack cocaine with intent to deliver in
violation of 18 U.S.C. § 841(a)(1) and being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). In his plea agreement, he admitted that he was a career offender. The
district court calculated the guidelines sentencing range, considered the relevant sentencing
factors under 18 U.S.C. § 3553(a), and imposed a within‐guidelines sentence of 198 months.
On appeal Lee argued that his sentence was unreasonable under Kimbrough v. United
States, 552 U.S. 85 (2007), because the district court did not address the disparity between
No. 08‐2799 Page 2
the guidelines ranges for crack‐ and powder‐cocaine offenses. We affirmed Lee’s sentence
based on circuit precedent holding that Kimbrough discretion is not implicated in career‐
offender cases. United States v. Lee, 352 F. App’x 112 (7th Cir. 2009) (citing United States v.
Harris, 536 F.3d 798, 813 (7th Cir. 2008) and United States v. Welton, 583 F.3d 494, 499 (7th
Cir. 2009)). Lee petitioned for certiorari. Meanwhile, however, we overruled the
aforementioned circuit precedent in United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010).
So the Supreme Court sent Lee’s case back to us for further consideration.
On remand we concluded that the Kimbrough error was not preserved in the district
court—Lee had merely reminded the court that “the Sentencing Commission has changed
its approach to crack cocaine offenses as recently as November of 2007.” Thus, our review
was for plain error only. See United States v. Taylor, 520 F.3d 746, 747‐48 (7th Cir. 2008);
United States v. Paladino, 401 F.3d 471, 481‐84 (7th Cir. 2005). Following the procedures
outlined in Taylor and Paladino, we retained jurisdiction and issued a limited remand asking
the district court whether it would like an opportunity to resentence Lee given our decision
in Corner. The court has now informed us that in light of the facts and circumstances of the
case, including Lee’s criminal history and predisposition towards violence, it “would still
impose the same sentence now knowing the full extent of its sentencing discretion.”
The only conceivable remaining issue is whether the sentence was reasonable. See
Paladino, 401 F.3d at 484. Leeʹs sentence was within the properly calculated guidelines
range and is therefore presumptively valid. See United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Lee has not advanced any convincing argument to overcome that
presumption. And there is no indication that the court failed to “consider[] the parties’
arguments” or lacked “a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007). Accordingly, Lee’s sentence was
reasonable and not the result of plain error.
AFFIRMED.