United States v. Spain, Patrick , 139 F. App'x 739 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July15, 2005
Decided July 18, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-1714
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 04-CR-20010
PATRICK SPAIN, Michael P. McCuskey,
Defendant-Appellant. Chief Judge.
ORDER
Patrick Spain entered unconditional guilty pleas to possessing five grams of
crack cocaine with intent to distribute (Count 1), see 21 U.S.C. § 841(a)(1), (b)(1)(B),
possessing a firearm in furtherance of a drug crime (Count 2), see 18 U.S.C.
§ 922(c)(1)(A)(i), and possessing a firearm as a convicted felon (Count 3), see id.§ 922(g)(1). The district court deemed the sentencing guidelines advisory and, after
granting the government’s motion for a substantial-assistance downward departure
under U.S.S.G. 5K1.1, imposed concurrent sentences of 120 months on Counts 1 and
3, and a consecutive sentence of 60 months on Count 2. The government, in moving
under § 5K1.1 for a departure below the guideline range, also expressly refused to
exercised its authority under 18 U.S.C. § 3553(e) to release Spain from the 10-year
No. 05-1714 Page 2
and consecutive 5-year minimum mandatory terms applicable to Counts 1 and 2,
respectively. Appointed counsel filed a notice of appeal, but now seeks to withdraw
under Anders v. California, 386 U.S. 738 (1967), because she cannot find a
nonfrivolous issue to present. Counsel’s Anders brief is facially adequate, and Spain
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).
Counsel first asks whether Spain could challenge his guilty pleas, but
represents that Spain does not wish to withdraw the pleas. Consequently, counsel
correctly concludes that she cannot address the validity of the pleas, because we have
held that appointed lawyers seeking to withdraw under Anders should not even
explore the propriety of a guilty plea unless the defendant has said he wants to
unwind the plea. United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel next considers whether any grounds exist to challenge the
reasonableness of Spain’s sentence, which the district court imposed in accordance
with our decision in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff’d, 125
S. Ct. 738 (2005). The district court, after taking into consideration the factors in 18
U.S.C. § 3553(a), sentenced Spain to a total of 180 months’ imprisonment, which is
the effective statutory minimum given the requirement that the sentence on Count 2
run consecutive to any other term. As counsel notes, a sentence imposed under an
advisory guideline scheme is reviewed for reasonableness, see United States v.
Booker, 125 S. Ct. 738, 765 (2005); United States v. Tedder, 403 F.3d 836, 844 (7th
Cir. 2005), and it would be frivolous for Spain to argue that the minimum statutory
term is unreasonable, see United States v. Henry, 408 F.3d 930, 935 (7th Cir. 2005);
United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).
Finally, counsel considers whether Spain could argue that the district court
erred by not further departing below the statutory minimum even without a
government motion under § 3553(e). That argument would be frivolous because it is
settled that only the government may initiate a § 3553(e) departure; the district
court lacked the authority to depart sua sponte below the statutory minimum
sentence. Melendez v. United States, 518 U.S. 120, 126 (1996); United States v.
McMutuary, 217 F.3d 477, 487 (7th Cir. 2000). Booker did not alter this limitation.
See United States v. Rivera, No. 02-3238, 2005 WL 1404570, at *2 (7th Cir. June 16,
2005); United States v. Duncan, No. 04-1916, 2005 WL 1540249, at *3 (7th Cir. July
1, 2005).
We therefore GRANT counsel’s motion to withdraw and DISMISS the
appeal.