United States v. John High , 378 F. App'x 587 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 25, 2010∗
Decided June 9, 2010
Before
FRANK H. EASTERBROOK , Chief Judge
RICHARD A. POSNER, Circuit Judge
ANN C LAIRE WILLIAMS, Circuit Judge
No. 09-3784 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Western District of Wisconsin.
Plaintiff-Appellee,
No. 07-CR-91-C-01
v. Barbara B. Crabb, Judge.
JOHN HIGH,
Defendant-Appellant.
Order
We affirmed John High’s conviction but vacated his sentence after concluding
that he is not covered by the Armed Career Criminal Act, 18 U.S.C. §924(e). See 576
F.3d 429 (7th Cir. 2009). High’s original sentence was 212 months’ imprisonment; our
decision meant that the maximum possible sentence was 120 months.
On remand, the district court imposed a 120-month sentence. High’s Guideline
range was above the statutory maximum, and the district judge stated that she thought
the original sentence appropriate with or without an armed-career-criminal
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 09-3784 Page 2
enhancement. Our opinion had observed that the district judge was free to consider the
conduct that led to High’s earlier convictions, for whatever that conduct revealed about
his character and prospects for recidivism, even though two of his four earlier felony
convictions did not meet the statutory definition of “violent felonies.” The district court
took this conduct into account, as it was entitled to do.
High’s lawyer has filed an Anders brief, see Anders v. California, 386 U.S. 264
(1967). Counsel observed that, because our 2009 opinion rejected challenges to the
conviction, only errors on remand in imposing the sentence would create non-frivolous
issues for appeal. But the fact that the 120-month sentence is below the Guideline range,
and that the district court thought that application of the statutory factors (see 18 U.S.C.
§3553(a)) would justify a sentence exceeding 200 months, made it impossible to frame a
non-frivolous issue for appeal. We agree with counsel’s assessment.
High has filed a response to counsel’s brief. See Circuit Rule 51. Most of this
statement expresses dissatisfaction with counsel’s performance in the district court, and
during and after his initial appeal (particularly counsel’s decision not to file a petition for
a writ of certiorari). Such arguments are not appropriate for direct appeal; they should
be raised by a petition under 28 U.S.C. §2255. See Massaro v. United States, 538 U.S. 500
(2003). High’s contention that a sentence of 120 months is unreasonably high is
frivolous. Our prior opinion made it clear that a 120-month sentence would be lawful;
we do not see any reason to think otherwise today.
Counsel’s motion to withdraw is granted, and the appeal is dismissed as
frivolous.