NONPRECEDENTIAL DISPOSITION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 23, 2012
Decided May 24, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12‐1252
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 11‐CR‐30106‐MJR
TERRY L. BLAKELY, Michael J. Reagan,
Defendant‐Appellant. Judge.
O R D E R
When the mother of two of his children arrived at his house to pick up the kids,
Terry Blakely pulled her inside and beat her with a folding chair and a tire iron. With the 3‐
and 7‐year‐olds watching, Blakely waved a loaded gun at their mother and told her,
“[B]itch, I’m gonna kill you.” The serial number on the gun Blakely waved had been
removed, and, following indictment, Blakely pleaded guilty to one count of possession of a
firearm with an obliterated serial number,
18 U.S.C. § 922(k). The district court imposed a
42‐month prison sentence, a 75‐percent increase over the high end of the 18‐ to 24‐month
imprisonment range calculated by the court.
Blakely filed a notice of appeal, but his appointed counsel has concluded that the
appeal is frivolous and seeks permission to withdraw. See Anders v. California,
386 U.S. 738
No. 12‐1252 Page 2
(1967). Blakely opposes counsel’s facially adequate submission. See CIR. R. 51(b). We limit
our review to the potential issues that counsel and Blakely discuss. See United States v.
Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002). Blakely has told counsel that he does not want
his guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea
colloquy or the voluntariness of the plea. See United States v. Knox,
287 F.3d 667, 670–72
(7th Cir. 2002).
Counsel first considers arguing that Blakely’s imprisonment range was
miscalculated to his detriment but ultimately concludes that any appellate claim would be
frivolous because, says counsel, the district judge applied the guidelines correctly. We agree
that a challenge to the court’s calculations would be frivolous, and not only because Blakely
waived any claim of error when his attorney successfully urged the district court to overrule
the prosecutor’s objections at sentencing and adopt the probation officer’s proposed
calculations. See United States v. Scott,
657 F.3d 639, 640 (7th Cir. 2011); United States v.
Panice,
598 F.3d 426, 433–34 (7th Cir. 2010).
More importantly, such a challenge would be frivolous because the district court’s
calculations are overly generous to Blakely. At a minimum, even assuming that the court
applied the correct Chapter 2 guideline and adjustments, Blakely’s total offense level is
understated by 2. The court applied a base offense level of 12, U.S.S.G. § 2K2.1(a)(7), and
added four levels—for a total of 16—because Blakely had used or possessed the gun “in
connection with another felony offense,” see id. § 2K2.1(b)(6)(B). From this the court
subtracted 2 levels for acceptance of responsibility, see id. § 3E1.1(a), to arrive at a total
offense level of 14. Yet § 2K2.1(b)(6) instructs that if this adjustment applies the offense level
should be increased to 18 if “the resulting offense level is less than 18.” With a proper
increase to 18 and a 2‐level reduction for acceptance of responsibility (the prosecutor ruled
out a third level, see id. § 3E1.1(b)), Blakely’s total offense level would have been 16, and his
guidelines imprisonment range would have been 24 to 30 months, not 18 to 24.
But that appears to be the smaller understatement of the guidelines range. At
sentencing the district court rejected the government’s proposal to apply the cross‐reference
in § 2K2.1(c)(1)(A) and utilize § 2A2.2, the Chapter 2 offense guideline for aggravated
assault. The parties agreed that § 2A2.2 would yield a greater offense level and should be
applied if Blakely’s conduct constituted an aggravated assault, see id. §§ 2K2.1(c)(1)(A),
2X1.1(a), but they disputed whether Blakely’s attack could be characterized as
“aggravated.” Section 2A2.2 defines aggravated assault as a “felonious assault that involved
(A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with
that weapon; (B) serious bodily injury; or (C) an intent to commit another felony.” Id.
§ 2A2.2, cmt. n.1. The district court concluded that Blakely had not intended to use the gun
to cause bodily injury, and that the victim had not suffered injuries that could be described
No. 12‐1252 Page 3
as “serious.” Even so, those conclusions overlook that Blakely did use the chair and the tire
iron to inflict bodily harm, and both objects were dangerous weapons in Blakely’s hands.
The application notes to § 2A2.2 specifically define chairs as dangerous weapons when used
to cause bodily injury, id. § 2A2.2, cmt. n.1; see United States v. Williams,
954 F.2d 204, 206
(4th Cir. 1992), and courts have frequently found to be dangerous weapons objects that pose
a similar or lesser risk of injury than a tire iron. See United States v. Bogan,
267 F.3d 614,
623–24 (7th Cir. 2001) (clothes iron); United States v. Sorenson,
58 F.3d 1154, 1160
(7th Cir. 1995) (concrete block); United States v. Tolbert,
668 F.3d 798, 803 (6th Cir. 2012)
(plastic water pitcher); United States v. Serrata,
425 F.3d 886, 910 (10th Cir. 2005) (boots);
United States v. Tissnolthtos,
115 F.3d 759, 763 (10th Cir. 1997) (piece of firewood); United
States v. Park,
988 F.2d 107, 110 (11th Cir. 1993) (metal pipe); cf. United States v. Matchopatow,
259 F.3d 847, 849–50 (describing murder in which defendant killed victim by striking her in
head with tire iron).
Applying the aggravated‐assault guideline conservatively, the court should have
started with a base offense level of 14, U.S.S.G. § 2A2.2(a), added 4 levels for use of a
dangerous weapon, see id. § 2A2.2(b)(2)(B); Bogan,
267 F.3d at 624, added 3 levels because
the victim sustained bodily injury, see
id. § 2A2.2(b)(3)(A); United States v. Dorvee,
616 F.3d
174, 187 n.12 (2d Cir. 2010); added 2 levels because Blakely violated an order of protection
during the altercation, see
id. § 2A2.2(b)(5); United States v. Azure,
571 F.3d 769, 771
(8th Cir. 2009), and then subtracted 2 levels for acceptance of responsibility,
id. § 3E1.1(a).
With a total offense level of 21 and a criminal history category of II, Blakely’s guidelines
imprisonment range would have been 41 to 51 months, placing the sentence he received at
the low end of his guidelines range.
But even treating Blakely’s sentence as above the guidelines range, we agree with
counsel that a challenge to its reasonableness would be frivolous. We would uphold an
above‐range sentence so long as the district court applied the factors in
18 U.S.C. § 3553(a)
and adequately explained the penalty. See United States v. Hill,
645 F.3d 900, 911 (7th Cir.
2011); United States v. Courtland,
642 F.3d 545, 550–51 (7th Cir. 2011). In this case the court
reasonably determined that Blakely’s criminal‐history category underrepresents the
seriousness of his criminal history, given his 16 misdemeanor convictions that did not earn
him any criminal‐history points. See U.S.S.G. § 4A1.3(a)(1); United States v. Jackson,
547 F.3d
786, 789–90, 793 (7th Cir. 2008); United States v. Valle,
458 F.3d 652, 654, 657–58
(7th Cir. 2006). The court also emphasized the heinous circumstances of the offense, see
18
U.S.C. § 3553(a)(1), noting that Blakely violated a restraining order and brandished a loaded
weapon in front of his children.
In his Rule 51(b) response, Blakely proposes to challenge the district court’s factual
findings regarding the extent of his altercation with his children’s mother, but we would
No. 12‐1252 Page 4
find such a challenge frivolous. Blakely, who did not testify at sentencing, presented no
evidence to counteract the victim’s testimony, which the court found credible. And he has
given us no reason to disturb that credibility assessment, particularly given our deferential
review of such determinations. See United States v. Etchin,
614 F.3d 726, 738 (7th Cir. 2010),
cert. denied, Cole v. United States,
131 S. Ct. 953 (2011); United States v. Acosta,
534 F.3d 574,
584 (7th Cir. 2008).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.
