NONPRECEDENTIAL DISPOSITION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 October 25, 2011
Decided October 25, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3359
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 10‐CR‐80‐WMC‐01
DAVID KNICKMEIER, William M. Conley,
Defendant‐Appellant. Chief Judge.
O R D E R
David Knickmeier amended his 2003 income tax return to claim falsely that he had
three children. The revision increased the amount of income exempt from tax and also
allowed Knickmeier to obtain a Child Tax Credit. He also helped his employer, a return
preparer, to sift through old client files to find returns that might be similarly amended to
increase the refund due. Knickmeier pleaded guilty to preparing and signing the false
amended return, see
26 U.S.C. § 7206(1), and was sentenced below the guidelines range to a
year and a day in prison. Knickmeier’s appointed lawyer asserts that this appeal is frivolous
and seeks to withdraw under Anders v. California,
386 U.S. 738 (1967). Knickmeier did not
accept our invitation to address counsel’s motion. See CIR. R. 51(b). We confine our review to
the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
No. 10‐3359 Page 2
Initially we note that Knickmeier has told counsel that he does not want his guilty
plea set aside. Thus counsel properly refrains from discussing the adequacy of the plea
colloquy or the voluntariness of the plea. See United States v. Knox,
287 F.3d 667, 671–72 (7th
Cir. 2002).
Counsel first considers whether Knickmeier could challenge the calculation of his
criminal‐history score. At sentencing the district court concluded that a conviction for
driving while intoxicated and two misdemeanor charges in 2003 for carrying a concealed
weapon and possessing a gun while intoxicated, see WIS. STAT. §§ 941.20(1), .23 (2011),
resulted in a criminal‐history category of II. Knickmeier pleaded no contest to the weapons
charges, and although the state deferred prosecution and eventually dismissed both,
see WIS. STAT. §§ 971.37–.40, the probation officer assigned a criminal‐history point under
U.S.S.G. § 4A1.2(f). Knickmeier did not dispute that diversionary dispositions can be
counted, but he objected that these particular charges (which arose from the same incident)
should have been excluded from his criminal‐history calculation. Misdemeanor offenses
presumptively count toward a defendant’s criminal‐history score, except that crimes
enumerated in § 4A1.2(c)(1), as well as other offenses that are “similar” to those
enumerated, are excluded unless the defendant was sentenced to at least 30 days in prison
or more than a year of probation. See United States v. Garrett,
528 F.3d 525, 528 (7th Cir.
2008); United States v. Hagenow,
423 F.3d 638, 645 (7th Cir. 2005). Knickmeier did not incur
any sentence because of the deferred prosecutions, so the weapons charges would not have
yielded a criminal‐history point if, as he contended, the two alleged violations are “similar”
to disorderly conduct. Sentencing courts employ a common‐sense approach when
determining whether prior offenses are “similar” to a crime enumerated in § 4A1.2(c)(1),
such as disorderly conduct. See U.S.S.G. § 4A1.2(c)(1) cmt. n.12; Hagenow,
423 F.3d at 645;
United States v. Harris,
325 F.3d 865, 872 (7th Cir. 2003). We would review a district court’s
application of § 4A1.2(c)(1) de novo. Garrett,
528 F.3d at 527.
We agree with counsel that a challenge to the district court’s criminal‐history
calculation would be frivolous. When faced with a similar issue involving the Illinois
offenses of disorderly conduct and unlawful discharge of a rifle, we compared elements of
the two crimes and concluded that the offenses are not “similar” under § 4A1.2(c)(1). United
States v. Staples,
202 F.3d 992, 996–97 (7th Cir. 2000). We would reach the same conclusion
here. The Wisconsin offenses of carrying a concealed weapon and carrying a gun while
intoxicated carry higher maximum punishments and have very different elements,
including the possession of a dangerous weapon, than the Wisconsin offense of disorderly
conduct. See WIS. STAT. §§ 939.51, 941.20(1), 941.23, 947.01; State v. Dundon,
594 N.W.2d 780,
783–84 (Wis. 1999). The latter charge is commonly used to sanction loud and profane
language, mailing obsessive letters to victims, repeated refusal to obey police commands,
No. 10‐3359 Page 3
and the like. See State v. Marten‐Hoye,
746 N.W.2d 498, 509 (Wis. Ct. App. 2008); State v.
Schwebke,
644 N.W.2d 666, 678–79 (Wis. 2001); City of Oak Creek v. King,
436 N.W.2d 285,
289–90 (Wis. 1989).
Finally, counsel examines whether Knickmeier could argue that his prison sentence
is unreasonable. But we agree with counsel that this argument would also be frivolous, as a
sentence below the guidelines range is presumed reasonable, see United States v. Curb,
626
F.3d 921, 927 (7th Cir. 2010); United States v. Jackson,
598 F.3d 340, 345 (7th Cir.), cert. denied,
131 S. Ct. 435 (2010), and he presents no reason to challenge that presumption.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
