United States v. Pennington, Maurice , 144 F. App'x 559 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005
Decided September 15, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2191
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Western
Plaintiff-Appellee, District of Wisconsin
v. No. 04-CR-211-S-01
MAURICE PENNINGTON, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Maurice Pennington pleaded guilty to possessing contraband in a federal
prison, 18 U.S.C. § 1791(a)(2), and was sentenced to 33 months’ imprisonment.
Pennington filed a notice of appeal, but his appointed counsel now seeks to
withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders
v. California, 386 U.S. 738 (1967). Counsel’s brief is facially adequate, and
Pennington has not responded to our invitation under Circuit Rule 51(b) to comment
on counsel’s submission. Thus, our review is limited to those potential issues
identified in counsel’s brief. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.
1997).
No. 05-2191 Page 2
Counsel first evaluated whether Pennington might challenge the
voluntariness of his guilty plea. Counsel, though, represents that Pennington has
no interest in having his guilty plea set aside, and we have held that lawyers should
not raise a voluntariness claim on appeal, or even explore the question in an Anders
submission, unless the defendant wants the plea set aside. See United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). Therefore, no challenge to the plea would
be before us.
Counsel also evaluated the sentencing proceedings for possible error but
found none. The guideline calculations were undisputed and, even though
Pennington was sentenced before the Supreme Court decided United States v.
Booker, 125 S. Ct. 738 (2005), the district court anticipated that decision and
applied the sentencing guidelines as advisory. The sentence imposed falls within
the advisory range, and we agree with counsel that it would be frivolous to argue on
this record that the 33-month term is unreasonable. See United States v. Bryant,
No. 04-2850, 2005 WL 2000981, at *5 (7th Cir. Aug. 22, 2005); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Dean, 414 F.3d 725,
730 (7th Cir. 2005).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.