United States v. Broadnaz, Drae , 142 F. App'x 926 ( 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UNPUBLISHED ORDER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 13, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1205
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western District
of Wisconsin
v.
No. 04-CR-139-C-01
DRAE BROADNAX,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Drae Broadnax pleaded guilty to possessing cocaine and cocaine base with
intent to distribute, 21 U.S.C. § 841(a)(1), and to possessing several firearms
despite a felony conviction, 18 U.S.C. § 922(g)(1). He was sentenced as a career
offender under U.S.S.G. § 4B1.1 to a total of 180 months’ imprisonment and four
years’ supervised release. Broadnax filed a notice of appeal, but his appointed
lawyer seeks to withdraw because he can discern no nonfrivolous issues to argue.
See Anders v. California, 386 U.S. 738 (1967). For his part, Broadnax accepted our
invitation to respond to his lawyer’s Anders brief, see Cir. R. 51(b), but posits no
potential issues.
No. 05-1205 Page 2
Limiting our review to possible arguments identified by counsel, see United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002), we agree that there are no
nonfrivolous issues to decide. Counsel first asserts that there are no conceivable
issues relating to Broadnax’s guilty plea. But he does not suggest that his client
wants to withdraw that plea, so he need not have broached the subject. See United
States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Second, counsel maintains
that Broadnax could not plausibly argue that the court erred by applying the
guidelines as mandatory. See United States v. Booker, 125 S. Ct. 738 (2005). We
agree that there is no possible argument here because the judge sentenced
Broadnax after Booker, explaining that she was using the guidelines “for advisory
purposes only” while considering the factors in 18 U.S.C. § 3553(a). This procedure
was proper. See United States v. Dean, 414 F.3d 725, 728–30 (7th Cir. 2005);
United States v. George, 403 F.3d 470, 472–73 (7th Cir. 2005). Finally, counsel
considers whether Broadnax could have been sentenced as a career offender under
U.S.S.G. § 4B1.1 even though he did not receive an information under 21 U.S.C.
§ 851 notifying him that the government intended to rely on prior convictions to
increase his penalty. But the requirement that the government submit an
information under § 851 does not apply when the defendant is sentenced under
§ 4B1.1; instead, it applies only when enhanced penalties are imposed under 21
U.S.C. § 841(b). See United States v. Galati, 230 F.3d 254, 263 (7th Cir. 2000);
Damerville v. United States, 197 F.3d 287, 289 (7th Cir. 1999) (per curiam).
Because Broadnax was sentenced under § 4B1.1 not § 841(b), the presentence
report was sufficient notice. See Galati, 230 F.3d at 263.
We GRANT counsel’s motion to withdraw and DISMISS Broadnax’s appeal.