United States v. Delong, Shaun , 148 F. App'x 558 ( 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UNPUBLISHED ORDER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 14, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1861
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western District
of Wisconsin
v.
No. 04-CR-090-S-02
SHAUN DELONG,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Shaun DeLong pleaded guilty to distributing methamphetamine, 21 U.S.C.
§ 841(a)(1), and was sentenced after United States v. Booker, 125 S. Ct. 738 (2005),
to 37 months’ imprisonment and three years’ supervised release. DeLong filed a
notice of appeal, but his appointed counsel moves to withdraw because he cannot
discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738(1967). We invited DeLong to comment on counsel’s motion, see Cir. R. 51(b), but he
has not responded. Our review is limited to the potential issues counsel has
identified. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
No. 05-1861 Page 2
DeLong benefitted from the dismissal of other charges as part of a plea
agreement, and counsel represents that DeLong has not expressed any desire to
have his guilty plea set aside. Accordingly, counsel appropriately avoids any
discussion of the plea colloquy or the voluntariness of DeLong’s guilty plea.
See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
As for DeLong’s sentence, counsel first considers arguing that the drug
quantity—12 grams of methamphetamine—was calculated incorrectly. As part of
his plea agreement, DeLong stipulated that the government could prove beyond a
reasonable doubt an amount between 2.5 and 5 grams, but the probation officer
calculated the 12-gram figure based on witness statements obtained during the
criminal investigation. DeLong did not object to the probation officer’s calculation
as factually inaccurate; instead, at sentencing he offered the “legal argument” that
Booker required the sentencing court to use the stipulated quantity because that is
all the government could prove beyond a reasonable doubt. Counsel, though, has
since concluded that this contention is frivolous, and we agree: “[w]ith the
guidelines now merely advisory . . . the Sixth Amendment is not in play.” United
States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005); United States v. LaShay, 417
F.3d 715, 719 (7th Cir. 2005).
Counsel also questions whether DeLong could construct a nonfrivolous issue
around the district court’s application of Booker. The court, though, complied with
Booker by calculating an advisory guideline range (which counsel now concedes to
be correct) and considering that range along with the other factors in 18 U.S.C.
§ 3553(a). See United States v. Alburay, 415 F.3d 782, 786-87 (7th Cir. 2005);
Dean, 414 F.3d at 727-28. And since the court selected a sentence within the
advisory range, DeLong’s sentence is presumed to be reasonable. See United States
v. Paulus, 2005 WL 2000984, at *6 (Aug. 22, 2005); United States v. Mykytiuk, 415
F.3d 606, 607-08 (7th Cir. 2005). We agree with counsel, then, that any Booker
argument would be frivolous in light of the record.
Accordingly, we GRANT the motion to withdraw and DISMISS this appeal.