United States v. Dwain Gaines ( 2013 )

NONPRECEDENTIAL DISPOSITION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 February 21, 2013
Decided February 25, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3130
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 11-20032-001
DWAIN U. GAINES, Michael P. McCuskey
Defendant-Appellant. Judge.
ORDER
Law enforcement officers executed a search warrant at the home of Dwain Gaines, a
felon, and found 205 grams of crack cocaine and a handgun. Gaines confessed to cooking
and selling crack. He pleaded guilty to possession with intent to distribute, 21 U.S.C.
§ 841(a), possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A)(i), and possession of a firearm by a felon, id. § 922(g)(1). Because of the drug
quantity and his prior convictions for felony drug offenses, Gaines faced a statutory
minimum of 10 years’ imprisonment on the drug count. See 21 U.S.C. § 841(b)(1)(B)(iii). He
also faced a consecutive term of at least 5 years for the § 924(c) violation. See 18 U.S.C.
§ 924(c)(1)(A)(i). The district court calculated a guidelines range of 262 to 327 months on the
drug count and added 60 more for the § 924(c), see U.S.S.G. § 4B1.1(c)(2)(A), for an overall
No. 12-3130 Page 2
range of 322 to 387 months. Gaines conceded that the range was correctly calculated, and
the court imposed a total sentence of 300 months.
Gaines filed a notice of appeal, but his appointed counsel believes that the appeal is
frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Gaines has not
responded to his lawyer’s submission, see CIR. R. 51(b), but he did tell counsel not to contest
his guilty pleas. Thus, counsel properly forgoes discussing the adequacy of the plea
colloquy or the voluntariness of the pleas. See United States v. Konczak, 683 F.3d 348, 349 (7th
Cir. 2012); United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002). We limit our review to
the potential issue identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel discusses only one potential issue: whether Gaines could challenge his
overall prison sentence as unreasonably high. The lawyer has not identified any reason to
set aside the presumption of reasonableness applicable to sentences below the guidelines
range. See United States v. Curtis, 645 F.3d 937, 943 (7th Cir. 2011); United States v. Liddell, 543
F.3d 877, 885 (7th Cir. 2008). The district court discussed how the factors in 18 U.S.C.
§ 3553(a) apply to Gaines’ illness, including his history of learning disabilities and recently
diagnosed cocaine-induced psychotic disorder. The court concluded that a lower sentence
would not adequately represent the seriousness of his crimes and his criminal history,
which includes two convictions for aggravated battery.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.