United States v. Anthony LeFlore ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1169
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY J. LEFLORE,
Defendants-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 18-CR-30074-MJR — Michael J. Reagan, Judge.
____________________
SUBMITTED JUNE 3, 2019 — DECIDED JUNE 12, 2019
____________________
Before FLAUM, SCUDDER, and ST. EVE, Circuit Judges.
PER CURIAM. Anthony LeFlore, who has two prior felony
convictions, traded drugs to minors in exchange for guns—
one of which he sold to a confidential informant. He pleaded
guilty to the illegal possession of a firearm. See 18 U.S.C.
§ 922(g). The district judge sentenced him to 96 months in
prison, the top of a 77 to 96 month Sentencing Guidelines
range, based on an offense level of 21 and a criminal history
category of VI (derived from 15 criminal history points).
2 No. 19-1169
LeFlore appealed, but his counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386
U.S. 738 (1967). (LeFlore did not respond to counsel’s motion.
See CIR. R. 51(b).) Counsel explains the nature of the case and
the issues that the appeal would involve. His analysis appears
thorough, so we limit our review to the topics that he dis-
cusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014).
Counsel first explains that he advised LeFlore of the pos-
sible disadvantages of contesting the adequacy of the plea col-
loquy and that LeFlore wants to challenge only his sentence.
Counsel thus properly declines to discuss arguments related
to the plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012).
Counsel then considers arguing that the district judge er-
roneously determined that LeFlore had 15 criminal history
points, but he decides that it would be frivolous to do so. The
judge, however, did make an error, in calculating the criminal
history points. The Guidelines treat sentences that are “im-
posed on the same day” as one when scoring a defendant’s
criminal history, unless there was an intervening arrest.
U.S.S.G. § 4A1.2(a)(2); see also Molina-Martinez v. United States,
136 S. Ct. 1338, 1344–48 (2016). Here, accepting a probation of-
ficer’s recommendation, the judge assessed three points for a
second-degree murder conviction and two more points for
driving on a revoked license. But according to the presentence
report, LeFlore was arrested on the same day for these of-
fenses and was sentenced for both on the same day approxi-
mately one year later. The judge, accordingly, should have as-
signed only three points for these offenses, not five.
No. 19-1169 3
Still, any challenge based on the miscalculation would be
frivolous because we would conclude that the judge’s error
was harmless. An error is harmless if it did not affect the ulti-
mate sentence imposed. See United States v. Shelton, 905 F.3d
1026, 1037 (7th Cir. 2018); United States v. Clark, 906 F.3d 667,
671 (7th Cir. 2018). Excluding the two points added in error,
the district judge should have determined that LeFlore had
13 criminal history points: 12 points based on convictions re-
sulting in prison sentences of varying lengths, see U.S.S.G.
§ 4A1.1, and 1 point based on a conviction resulting in a fine,
see id. at § 4A1.1(c); United States v. Fluker, 698 F.3d 988, 1003
(7th Cir. 2012). With 13 criminal history points, LeFlore would
remain in the same criminal history category of VI that the
judge previously calculated based on having assigned
15 points, and thus the same Guidelines range would apply.
See U.S.S.G. Ch. 5, pt. A (sentencing table). The judge also
added that the criminal history points and category un-
derrepresented LeFlore’s criminality.
At no point during sentencing did the judge give any in-
dication that he would have imposed a lower sentence if
LeFlore remained in the same criminal history category with
fewer criminal history points. As other circuits have done un-
der similar circumstances, we would conclude that the mis-
calculation of LeFlore’s criminal history points, which did not
change the applicable criminal history category, was harm-
less. See, e.g., United States v. Isaac, 655 F.3d 148, 158 (3d Cir.
2011); United States v. Tiger, 223 F.3d 811, 812–13 (8th Cir.
2000); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994);
see also United States v. Monzo, 852 F.3d 1343, 1351 (11th Cir.
2017) (ruling that additional criminal history points, if added
4 No. 19-1169
in error, were harmless when defendant already did not qual-
ify for safety valve and received statutory minimum sen-
tence).
Counsel then considers arguing that the court applied an
excessively high base-offense level built on an erroneous con-
clusion that two of LeFlore’s prior Illinois convictions (for sec-
ond-degree murder, 720 ILCS 5/9-2, and domestic battery,
720 ILCS 5/12-3.2) were for crimes of violence. See U.S.S.G.
§ 2K2.1(a)(2). He rightly concludes, though, that the argument
would be frivolous. A conviction under Illinois’s second-de-
gree murder statute is a crime of violence. United States v.
Teague, 884 F.3d 726, 729–30 (7th Cir. 2018). So is a conviction
for domestic battery based on causing bodily harm under
720 ILCS 5/12-3.2(a)(1). See United States v. Waters, 823 F.3d
1062, 1064–65 (7th Cir. 2016). True, a conviction under 720
ILCS 5/12-3.2(a)(2) for domestic battery based on making
physical contact of an insulting or provoking nature falls out-
side the definition of a crime of violence, see United States v.
Lynn, 851 F.3d 786, 797 (7th Cir. 2017) (citing Illinois battery
statute, 720 ILCS 5/12-3), but LeFlore never objected to the
presentence investigation report’s representation that his do-
mestic battery conviction was for a violent felony, and we
would not conclude that the district court plainly erred in ac-
cepting that it was, see id. at 799–800.
Counsel next contemplates arguing that the sentence was
substantively unreasonable. But counsel accurately concludes
that this argument would be frivolous, too. The district court
appropriately considered the § 3553(a) factors, including the
seriousness of the offense (LeFlore traded drugs to juveniles
for guns), and LeFlore’s history and characteristics (LeFlore’s
criminal history category did not reflect his numerous other
No. 19-1169 5
convictions during his “32-year crime spree”). The sentence,
the court stated, was necessary to punish and deter LeFlore,
as well as to protect the public, given his extensive criminal
history. Counsel suggests that the court erred by not address-
ing LeFlore’s argument that his history of alcohol and drug
use were mitigating factors. A district court, however, need
not expansively respond to every argument if its reasoning is
otherwise clear, and it need not respond at all to stock argu-
ments. See United States v. Graham, 915 F.3d 456, 459 (7th Cir.
2019). In any event, a defendant waives an appellate challenge
to a district court’s explanation of the sentence when he does
not accept a court’s invitation to object, see United States v. Sal-
gado, 917 F.3d 966, 970 (7th Cir. 2019), and LeFlore declined
the court’s offer of “further amplification of [§] 3553.”
Last, counsel assesses potential challenges to LeFlore’s
conditions while on supervised release, but he correctly de-
termines that LeFlore waived any such challenge. A defend-
ant waives appellate arguments against supervisory condi-
tions when he has a chance to review them before sentencing
and does not object to them. See United States v. St. Clair, No.
18-1933, 2019 WL 2399597, at *2 (7th Cir. June 7, 2019); United
States v. Gumila, 879 F.3d 831, 837–38 (7th Cir. 2018). LeFlore
said at the sentencing hearing that he reviewed the presen-
tence investigation report with counsel, understood the pro-
posed conditions, and agreed that they were appropriate.
We therefore GRANT counsel’s motion to withdraw and
DISMISS the appeal.