United States v. Barringer, Albert , 248 F. App'x 754 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 September 26, 2007
Decided September 27, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1888
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:07CR00009-001
ALBERT BARRINGER,
Defendant-Appellant. John Daniel Tinder,
Judge.
ORDER
Albert Barringer—a homeless man with a previous conviction for threatening
a United States probation officer—used a razor to scratch the paint on four vehicles
parked outside the federal courthouse in Indianapolis, Indiana. Three of them were
privately owned, but one was a Chevrolet Tahoe owned by the United States
Marshals Service; Barringer scratched the letters “USM” onto its door. Barringer
pleaded guilty to damaging government property, see 18 U.S.C. § 1361, and the
parties stipulated that the loss for purposes of applying the sentencing guidelines
did not exceed $5,000. But the probation officer calculated a loss of $7,034, which
included the damage Barringer caused to the privately owned vehicles. At
sentencing the district court adopted the probation officer’s calculation. The court
thus started with a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), and added
No. 07-1888 Page 2
two levels to reflect a loss between $5,000 and $10,000, see id. § 2B1.1(b)(1)(B).
After subtracting two levels for acceptance of responsibility, see id. § 3E1.1(a), the
court applied the resulting offense level of 6 against Barringer’s criminal history
category of IV, for a guidelines imprisonment range of 6 to 12 months. The court
then considered the sentencing factors under 18 U.S.C. § 3553(a) and sentenced
Barringer to a term of 30 months.
Barringer appeals, but his appointed counsel has moved to withdraw because
he cannot discern any nonfrivolous argument to pursue. See Anders v. California,
386 U.S. 738 (1967). We invited Barringer to comment on counsel’s submission, see
Cir. R. 51(b), but he has not responded. We review only those potential issues
identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
Counsel reports that Barringer does not want to have his guilty plea set
aside, and thus he considers only potential challenges to Barringer’s sentence. See
United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). Counsel first asks
whether Barringer might argue that the district court erred by considering as
relevant conduct his vandalism of the privately owned vehicles when that conduct
could be charged only as a state, rather than a federal, offense. See Ind. Code 35-
43-1-2. But nothing in the sentencing guidelines precludes the court from
considering an uncharged state offense as relevant conduct. See U.S.S.G.
§ 1B1.3(a)(1); United States v. Johnson, 324 F.3d 875, 877-78 (7th Cir. 2003); United
States v. Hough, 276 F.3d 884, 898 (6th Cir. 2002); United States v. Martin, 157
F.3d 46, 51 (2d Cir. 1998); United States v. Pollard, 986 F.2d 44, 47 (3d Cir. 1993);
United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991). Indeed, we have
recognized that “the Supreme Court has consistently approved the use of virtually
any conduct (uncharged, acquitted, or otherwise) in sentencing.” United States v.
Porter, 23 F.3d 1274, 1279 (7th Cir. 1994). Accordingly, counsel properly concludes
that it would be frivolous for Barringer to argue that the district court erred in
considering as relevant conduct his damage to the privately owned vehicles.
Counsel next considers whether Barringer could argue that his above-
guidelines prison sentence is unreasonable. In reviewing the reasonableness of the
sentence, we would ask simply whether the district court gave a reasoned basis for
it after considering the parties’ arguments and the sentencing factors set forth in 18
U.S.C. § 3553(a). See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); United
States v. Vitrano, 495 F.3d 387, 391 (7th Cir. 2007). The farther the sentence varies
from the advisory guidelines range, the more detailed the court’s explanation must
be. United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). Here, the
sentencing court explicitly considered the factors set forth in § 3553(a) and
explained in detail why those factors point to an above-guidelines sentence. The
court found that Barringer’s vandalism was designed specifically to harass federal
No. 07-1888 Page 3
officials. The court was particularly troubled that Barringer targeted cars parked
at the federal courthouse even after serving a 27-month sentence for threatening
his probation officer. That prior sentence, the court reasoned, had done nothing to
deter Barringer. The court concluded that a 30-month sentence was necessary to
stop Barringer from harassing federal employees, to protect the public from further
crimes, and to give Barringer access to mental-health treatment and vocational
training. Because the court gave ample reasons for Barringer’s 30-month sentence,
counsel correctly concludes that it would be frivolous to argue that the sentence is
unreasonable.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.