United States v. Timothy Harrell , 260 F. App'x 916 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 January 18, 2008
Decided January 22, 2008
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-2027
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 06-20054-001
TIMOTHY R. HARRELL, Michael P. McCuskey,
Defendant-Appellant. Chief Judge.
ORDER
After police officers in Champaign, Illinois, arrested Timothy Harrell for
driving under the influence of marijuana, they found crack and powder cocaine in
the squad car they used to take him to jail. The officers obtained a warrant to
search a hotel room Harrell was renting, and there they found 78 grams of crack
and 114 grams of powder cocaine. Harrell pleaded guilty to possessing with the
intent to distribute more than 50 grams of crack. See 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii). At sentencing the district court determined that Harrell’s two prior
burglary convictions qualified him as a career offender. See U.S.S.G. § 4B1.1. The
court calculated a guidelines imprisonment range of 262 to 327 months, and
sentenced Harrell to 262 months. Harrell appeals, but his court-appointed attorney
now moves to withdraw because she cannot discern a nonfrivolous basis for the
No. 07-2027 Page 2
appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Harrell declined our
invitation to respond to counsel’s facially adequate brief, see CIR. R. 51(b), but
moved for substitute counsel instead. Our review is limited to the potential issues
identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
Counsel first asks whether Harrell might argue that his plea was
involuntary, but she has not said whether Harrell wants to have his plea set aside,
and she should not have explored the issue unless she knows that he does. See
United States v. Torres, 482 F.3d 925, 925 (7th Cir. 2007); United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2001). In any event, counsel is unable to point to any
deficiency in the plea colloquy that could undermine Harrell’s plea. Indeed, the
court complied with Federal Rule of Criminal Procedure 11, and thus we agree that
any potential argument that his plea was involuntary would be frivolous. See FED.
R. CRIM. P. 11(b); Schuh, 289 F.3d at 975.
Next counsel considers whether Harrell could argue that his first residential
burglary conviction does not qualify as a crime of violence because he served only
five months of his four-year sentence. But as the guidelines explain, a burglary
that is punishable by more than one year in prison qualifies “regardless of the
actual sentence imposed,” U.S.S.G. § 4B1.2, cmt. n.1; see also United States v.
Jones, 235 F.3d 342, 345 (7th Cir. 2000), and residential burglary in Illinois carries
a minimum punishment of four years’ imprisonment, see 720 ILCS 5/19-3; 730 ILCS
5/5-8-1. Harrell was discharged after he successfully completed a five-month
bootcamp program—but his early release has no bearing on the nature of the
offense he committed. Cf. United States v. Coleman, 38 F.3d 856, 859 (7th Cir.
1994) (noting that enumerated offenses like burglary “are conclusively ‘crimes of
violence,’ regardless of their circumstances”). Thus we agree with counsel that it
would be frivolous to challenge the district court’s conclusion that his burglary
conviction qualified as a crime of violence.
Counsel also considers whether Harrell could argue that his prison sentence
is unreasonable. But at sentencing Harrell never even suggested the existence of a
factor under 18 U.S.C. § 3553(a) that would warrant a below-range sentence, not
even the differential between sentences for crack and powder cocaine. Cf.
Kimbrough v. United States, 128 S.Ct. 558, 564 (2007). And it would be frivolous for
him to suggest such a reason here for the first time, since we have explained that a
defendant cannot complain on appeal that his sentence should have been lower on
account of § 3553(a) factors that were never disclosed to the district court. See
United States v. Filipiak, 466 F.3d 582, 584 (7th Cir. 2006); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Moreover, in this particular case,
Harrell’s counsel argued at sentencing that a 262-month term would be reasonable
and should be imposed, and that is the precise sentence Harrell received. His
No. 07-2027 Page 3
sentence—which falls at the low end of the guidelines range—would be entitled to a
presumption of reasonableness, see Rita v. United States, 127 S.Ct. 2456, 2462
(2007); United States v. Gammicchia, 498 F.3d 467, 468 (7th Cir. 2007), and counsel
has been unable to identify any reason why we would not apply that presumption
here.
In his motion for new counsel, Harrell complains that his attorney has not
done enough to identify potential issues for appeal, but he has not identified any
issues that he believes counsel failed to explore. Accordingly, we GRANT counsel’s
motion to withdraw, DENY Harrell’s motion for new counsel, and DISMISS the
appeal.