United States v. Horshaw, William , 189 F. App'x 569 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 14, 2006
Decided July 27, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Nos. 05-2599
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Indiana, Fort Wayne
v. Division
WILLIAM C. HORSHAW, No. 2:01 CR 185(4) TLS
Defendant-Appellant.
Theresa L. Springmann,
Judge.
ORDER
William Horshaw pleaded guilty to two counts of using a telephone to
facilitate the commission of a felony drug offense. See 21 U.S.C. § 843(b). He was
sentenced to the statutory maximum of 96 months’ imprisonment. His appointed
counsel moves to withdraw under Anders v. California, 386 U.S. 738 (1967),
contending that there are no non-frivolous issues for appeal. Since counsel’s brief is
facially adequate, we limit our inquiry to the issues raised there and in Horshaw’s
response under Circuit Rule 51(b). See United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997) (per curiam).
Counsel first notes that Horshaw has not expressed a desire to withdraw his
guilty plea based on an argument of involuntariness. In fact, in his Rule 51(b)
submission, Horshaw says, “I have no desire to have my conviction set aside,” and
that he is “only asking the court to rule on an unreasonable sentence.” Any
No. 05-2599 Page 2
consideration of the voluntariness of his guilty plea would therefore be
inappropriate. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
The sentencing arguments that Horshaw raises as potential issues for an
appeal are frivolous. He received two terms of four years each, the statutory
maximum sentence, which was the sentence that was contemplated in his plea
agreement and at his plea hearing. Nevertheless, Horshaw contends that he should
not have been charged and sentenced for two counts of using a phone to commit a
felony drug offense because “[t]he calls were only 3 min[ute]s apart and therefore, I
could only receive time for the one offense.” But this ignores the plain language of
the statute, which states, “Each separate use of a communication facility shall be a
separate offense under this subsection.” 21 U.S.C. § 843(b). Horshaw also argues
that he wrongfully “received punishment past the statutory maximum.” But this
simply is not so. He was given the statutory maximum term and no more for each
violation. Horshaw should count himself lucky, for his sentencing guideline range
was 135 to 168 months; the statutory maximum prevented his sentence from being
even higher.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.