United States v. Warren E. Stepney, Jr. ( 2018 )

NONPRECEDENTIAL DISPOSITION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 May 3, 2018
Decided May 7, 2018
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-3190
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 16-CR-30139-MJR
WARREN E. STEPNEY, JR., Michael J. Reagan,
Defendant-Appellant. Chief Judge.
ORDER
In June 2017, Warren Stepney, Jr., entered an open plea of guilty to two counts of
possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g), and was sentenced within the guidelines to a 120-month term on each count, to
be served concurrently, and 3 years’ supervised release. Stepney now appeals, but his
lawyer asserts that the appeal is frivolous and seeks to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Stepney has not responded to counsel’s motion.
See CIR. R. 51(b). Because counsel’s brief explains the nature of the case and thoroughly
addresses the issues that an appeal of this kind might be expected to involve, we limit
our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
No. 17-3190 Page 2
Counsel reports that he consulted with Stepney, who, he confirms, does not want
to withdraw his guilty plea; thus, counsel appropriately refrains from exploring
arguments about whether the plea was knowing and voluntary. See FED. R. CRIM. P. 11;
United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d
667, 670–71 (7th Cir. 2002).
Stepney’s attorney first considers whether the district court, in its guidelines
calculations, erred in assigning him a base offense level of 20 for previously having been
convicted of a “crime of violence,” Illinois robbery under 720 ILCS 5/18-1(a).
See U.S.S.G. § 2K2.1(a)(4)(A); § 4B1.2. Counsel asks whether he could argue that Illinois
robbery requires less force than the violent force required under § 4B1.2(a)’s elements
clause, but properly concludes that it would be frivolous to do so. See Shields v.
United States, 885 F.3d 1020, 1024 (7th Cir. 2018) (citing United States v. Dickerson,
901 F.2d 579, 584 (7th Cir. 1990), for conclusion that Illinois robbery requires sufficient
force to be violent felony under similarly worded sentencing-enhancement statute,
18 U.S.C. § 924(e)); United States v. Chagoya-Morales, 859 F.3d 411, 422 (7th Cir. 2017)
(finding Illinois aggravated robbery, 720 ILCS 5/18-1(b), is a crime of violence under the
Guidelines).
Counsel also considers whether the district court erred in failing to consider any
principal arguments in mitigation. For instance, counsel asks whether the court
overlooked Stepney’s argument that the guidelines range was overly punitive, given
the substantial increase caused by the aggregation of the enhancements for each of his
separate offenses. But counsel notes that any such challenge would be frivolous because
the judge appropriately exercised his discretion under 18 U.S.C. § 3553(a), United States
v. Bloom, 846 F.3d 243, 257–58 (7th Cir. 2017), when he stated that he would impose the
same sentence notwithstanding the final guidelines range (“I can tell you that this
would be your sentence irrespective of whether or not your guideline level was two or
even four levels less…I don’t think a sentence of anything less than ten years is going to
meet the goals and purposes of 18 U.S.C. [§] 3553.”). Counsel also asks whether the
court erred by “glossing over” the testimony of Stepney’s father that he was involved
only minimally in Stepney’s life. The judge indeed did not address this testimony, but
any error in not doing so was harmless because this testimony was not inconsistent
with information in the presentence report that Stepney’s relationship with his father,
albeit limited, was nonetheless a “good” one—a fact to which neither party objected.
Finally, counsel considers, but rightly rejects as frivolous, an argument that
Stepney’s 120-month prison term is unreasonable. The term is within the guidelines
No. 17-3190 Page 3
range of 100–125 months and thus presumptively reasonable. United States v. Adams,
879 F.3d 826, 829 (7th Cir. 2018); Rita v. United States, 551 U.S. 338, 347 (2007). Counsel
has not identified any reason to set aside that presumption, nor can we. The district
court weighed the sentencing factors in § 3553(a), including Stepney’s youth, the need
for a sentence to serve as a deterrent given his extensive criminal history (dating back to
age eleven), the need to protect the public from further crimes, and the need to provide
just punishment.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.