NONPRECEDENTIAL DISPOSITION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 December 16, 2010
Decided December 22, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐1887
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:09CR40056‐001‐JPG
FREDERICK G. GOOSBY, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Frederick Goosby, along with an accomplice, sauntered into First Bank and Trust in
Murphysboro, Illinois, and handed the teller a note reading, “This is a holdup.” Before
grabbing some of the money that the teller had laid out, Goosby chided her to hurry and
emphasized his impatience by thrusting what the teller believed to be a gun under his shirt.
Police arrested Goosby, who already was on supervised release for other federal
convictions, after his wife provided information about the robbery. Goosby pleaded guilty
to one count of bank robbery. See
18 U.S.C. § 2113(a). Given his federal drug convictions
and a state conviction for aggravated battery of a child, the district court designated Goosby
as a career criminal, see U.S.S.G § 4B1.1, and calculated an imprisonment range of 151 to 188
months. The court sentenced Goosby above that range to 196 months, to be served
No. 10‐1887 Page 2
consecutively to the 44‐month term of reimprisonment imposed for violating his supervised
release.
Goosby filed a timely notice of appeal challenging his new conviction but not the
revocation of supervised release. His appointed lawyer has concluded, however, that the
appeal is frivolous and seeks permission to withdraw. See Anders v. California,
386 U.S. 738
(1967). Goosby did not respond to our invitation to comment on counselʹs motion.
See CIR. R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our
review to the potential issue counsel discusses. See United States v. Schuh,
289 F.3d 968,
973‐74 (7th Cir. 2002). According to counsel, Goosby does not want his guilty plea vacated.
Thus counsel appropriately omits discussion about the adequacy of the plea colloquy and
the voluntariness of the plea. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
As part of his plea agreement, Goosby conceded the accuracy of the district court’s
guideline’s calculations and also waived the right to appeal “any aspect of his conviction
and sentence” except for the reasonableness of a sentence “in excess of the Sentencing
Guidelines as determined by the Court.” This unambiguous appeal waiver stands with
Goosby’s uncontested guilty plea, United States v. Quintero,
618 F.3d 746, 752 (7th Cir. 2010);
United States v. Williams,
184 F.3d 666, 668 (7th Cir. 1999); United States v. Wenger,
58 F.3d
280, 282 (7th Cir. 1995), so the only conceivable argument on appeal would be that the 196‐
month prison term would be unreasonable as measured against the 151 to 188 month range
calculated by the district court. That potential argument, says counsel, is frivolous and we
agree.
As counsel notes, an appellate presumption of reasonableness does not apply to a
prison term above the guidelines range, but our limited review would be for abuse of
discretion, and we would uphold the sentence so long as the district court provided enough
explanation to substantiate the degree of variance above the range. United States v. Johnson,
612 F.3d 889, 896 (7th Cir. 2010); United States v. Miller,
601 F.3d 734, 739 (7th Cir. 2010);
United States v. Carter,
538 F.3d 784, 789 (7th Cir. 2008).
Here, the district court evaluated Goosby’s individual characteristics and arguments
in mitigation, including his health, his pattern of recidivism, the seriousness of the bank
robbery, and the effect on the victim teller. The district judge had sentenced Goosby for his
prior drug convictions, and in the court’s view, his “inability to live in a free society without
violating the law,” despite the numerous opportunities for reform he received in prior
dealings with the criminal justice system, warranted a sentence that was marginally above
the guidelines range. See United States v. Ellis,
622 F.3d 784, 800 (7th Cir. 2010); United States
v. Gooden,
564 F.3d 887, 891 (7th Cir. 2009); United States v. Jackson,
547 F.3d 786, 793 ‐94 (7th
No. 10‐1887 Page 3
Cir. 2008);. The district courtʹs careful consideration of the factors in
18 U.S.C. § 3553(a)
leaves Goosby no basis for an appeal.
Counselʹs motion to withdraw is GRANTED, and the appeal is DISMISSED.
