United States v. Clevenger, Bruce ( 2007 )

NONPRECEDENTIAL DISPOSITION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 29, 2007
Decided August 31, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
07-1562
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central District
of Illinois
v.
No. 06-CR-30067-001
BRUCE CLEVENGER
Defendant-Appellant. Jeanne E. Scott,
Judge.
ORDER
Bruce Clevenger pleaded guilty to conspiracy to pass counterfeit currency.
See 18 U.S.C. § 371. The district court sentenced him to 33 months’ imprisonment,
the bottom of the guidelines range. Clevenger filed a notice of appeal, but his
appointed counsel has moved to withdraw because he is unable to find a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Counsel's supporting brief is facially adequate, and Clevenger did not respond to
our invitation under Circuit Rule 51(b) to explain why he believes his appeal has
merit, so we review only the potential issues identified in counsel's brief. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
07-1562 Page 2
At sentencing, Clevenger objected to the presentence report’s
recommendation that he receive a two-level enhancement to his base offense level
under U.S.S.G. § 2B5.1(b)(2)(A) for manufacturing the counterfeit bills himself.
Clevenger conceded that he manufactured the bills but argued that they were too
obviously counterfeit to be passable. He relied on § 2B5.1's Application Note 4,
which precludes use of that guideline for counterfeit bills that were “so obviously
counterfeit that they [we]re unlikely to be accepted even if subjected to only
minimal scrutiny.” U.S.S.G. § 2B5.1(b)(2)(A) cmt. n.4. The government responded
that the bills appeared sufficiently authentic to have been accepted at a restaurant
and two different garage sales. The district judge then examined three of the bills
and found them a bit yellowed but observed, “haven’t we all received bills back that
were dirty, muddied, off-color . . . and they were perfectly good.” The court assumed
that a casual observer was not likely to detect that the bills were counterfeit and
therefore applied the two-level enhancement.
In his Anders submission, counsel first considers challenging the
voluntariness of Clevenger's guilty plea, but properly does not explore the issue
because Clevenger has told him that he does not wish to withdraw his plea. See
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel then considers renewing his argument that the enhancement under
§ 2B5.1(b)(2)(A) should not have been applied. We would review for clear error the
district court’s finding that the bills were not “so obviously counterfeit,” see United
States v. Burks, 490 F.3d 563, 565 (7th Cir. 2007), and we agree with counsel that
this challenge would be frivolous. It might have been preferable if we had a sample
of the counterfeit bills, see United States v. Barnes, 188 F.3d 893, 895 (7th Cir.
1999); United States v. Bollman, 141 F.3d 184, 187 (5th Cir. 1998) (per curiam), but
the record is adequate for our review. Here, where there is evidence that several
different vendors accepted the bills, we could not say that the district court erred in
finding the bills passable under Application Note 4's lax standard of “minimal
scrutiny.” See United States v. Hughes, 310 F.3d 557, 562 (7th Cir. 2002)
(approving district court’s reasoning that currency was not obviously counterfeit if
“no merchant rejected the counterfeit”).
Finally, counsel considers whether Clevenger could challenge the
reasonableness of his overall prison term, but properly concludes that such a
challenge would be frivolous. Clevenger’s sentence at the bottom of the guidelines
range would be presumed reasonable. See United States v. Rita, No. 06-5754, 2007
WL 1772146, at *6 (U.S. Jun. 21, 2007); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Counsel considers whether Clevenger could overcome this
presumption by arguing that his sentence created an “unwarranted disparity”
under 18 U.S.C. § 3553(a)(6) with those of his co-defendants, who each received a
prison sentence of one month. But we agree with counsel that the disparity was
07-1562 Page 3
warranted on account of Clevenger’s greater role in the offense and his extensive
criminal history. See United States v. Gammicchia, No. 06-3325, __ F.3d __, 2007
WL 2265134 (7th Cir. 2007).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.