United States v. Henderson, Jessica ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2006
Decided March 10, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3014
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin
v. No. 04-CR-210-S-02
JESSICA HENDERSON, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Jessica Henderson pleaded guilty to attempting to manufacture
methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1). She and her boyfriend
manufactured the drug in rural Wisconsin for a year-and-a-half before authorities
ended their operation. After the Supreme Court issued its decision in United States
v. Booker, 125 S.Ct. 738 (2005), the district court sentenced Henderson within the
recommended imprisonment range to 116 months to be followed by 3 years’
supervised release. Henderson filed a notice of appeal, but her appointed lawyer
now moves to withdraw because he cannot discern a nonfrivolous basis for the
appeal. See Anders v. California, 386 U.S. 738 (1967). We notified Henderson that
she could respond to counsel’s motion, see Cir. R. 51(b), but she has not. Because
No. 05-3014 Page 2
counsel’s supporting brief is facially adequate, we review only the potential issues it
identifies. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Henderson has expressed no interest in having her guilty plea set aside, so
counsel appropriately avoids any discussion about the adequacy of her guilty plea
colloquy or the voluntariness of her plea. See United States v. Knox, 287 F.3d 667,
671 (7th Cir. 2002). Counsel instead focuses on Henderson’s sentence, identifying
potential issues concerning the district court’s application of the sentencing
guidelines and its underlying factual determinations. Counsel first considers
arguing that the court abused its discretion when it looked to the sentencing
guidelines for advice, but this potential argument would be frivolous as district
courts are required to properly calculate and consult the imprisonment range
recommended by the guidelines. See United States v. Laufle, 433 F.3d 981, 984-85
(7th Cir. 2006); United States v. Bokhari, 430 F.3d 861, 863 (7th Cir. 2005).
Counsel also considers whether Henderson might argue that the court’s findings as
to the drug quantity and criminal history score are erroneous. At sentencing
Henderson had challenged the court’s authority to estimate some of the amounts
included in the overall drug quantity, but sentencing courts are permitted to make
such estimations. United States v. Hankton, 432 F.3d 779, 792 (7th Cir. 2005). And
because Henderson conceded at sentencing that the advisory range and criminal
history score were accurately calculated she has waived any argument on these
grounds. See United States v. Souffront, 338 F.3d 809, 837 (7th Cir. 2003); United
States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000).
Continuing with potential sentencing arguments, counsel next considers
whether it would be frivolous to argue that the district court improperly evaluated
the sentencing factors listed in 18 U.S.C. § 3553(a). The court took note of
Henderson’s education level and the fact that she was not in a gang, as well as the
nature and length of her efforts to manufacture methamphetamine. The court also
weighed Henderson’s continued drug activity between June 2004—when she was
released on bail after a shoplifting arrest—and her December 2004 arrest on the
current charge. It would be frivolous to argue that the court’s consideration did not
adequately address the § 3553(a) factors. See, e.g., United States v. Vaughn, 433
F.3d 917, 924-25 (7th Cir. 2006); United States v. Williams, 425 F.3d 478, 480 (7th
Cir. 2005).
Finally, counsel considers arguing that the 116-month term is unreasonably
long. This, too, would be a frivolous contention. The term imposed is within the
advisory imprisonment range, and counsel has been unable to articulate anything
in this record that rebuts the presumptive reasonableness of the term imposed. See
United States v. Brock, 433 F.3d 931, 938 (7th Cir. 2006); United States v. Bryant,
420 F.3d 652, 658 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005).
No. 05-3014 Page 3
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.