United States v. Maul, David C. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2006
Decided November 9, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1687
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central
District of Illinois
v.
No. 05-30084-001
DAVID C. MAUL,
Defendant-Appellant. Jeanne E. Scott,
Judge.
ORDER
David Maul struggled with two federal officers who were sent to arrest him
for violating the conditions of his supervised release, which had been imposed as
part of his sentence for federal firearm convictions. Maul pleaded guilty to forcibly
assaulting the officers, a misdemeanor. See 18 U.S.C. § 111(a). The district court
sentenced him to 12 months’ imprisonment (the statutory maximum, which fell
below the guidelines range), one year of supervised release, and a $25 special
assessment. Appointed counsel filed a notice of appeal but now moves to withdraw
because he cannot discern a nonfrivolous basis for appeal. See Anders v. California,
386 U.S. 738 (1967). Maul responded to counsel’s submission. See Cir. R. 51(b).
Counsel’s supporting brief is facially adequate, so we limit our review to the
potential issues identified by counsel and Maul. See United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam).
No. 06-1687 Page 2
Maul does not want his guilty plea set aside, and thus counsel appropriately
has omitted any discussion of the adequacy of the plea colloquy or the voluntariness
of Maul’s plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).
Both counsel and Maul, though, consider potential sentencing issues, beginning
with the calculation of the guidelines imprisonment range. Maul’s violation of
§ 111(a) is a Class A misdemeanor, see 18 U.S.C. §§ 111(a), 3559(a)(6), so the
sentencing guidelines apply. See U.S.S.G. § 1B1.9.
Counsel first evaluates whether Maul might argue that the district court
erred in applying a three-level upward adjustment under U.S.S.G. § 2A2.4(b) on the
ground that Maul’s offense “involved physical contact.” At sentencing the two
federal officers and another local police officer who assisted them testified that
Maul struggled with all of them. It would be frivolous for Maul to argue that the
district court committed clear error in crediting their testimony, especially since
Maul did not even testify or offer any other contradictory evidence. The district
court’s decision is supported in the record, and Maul did not present any evidence to
challenge its accuracy. See United States v. Cross, 430 F.3d 406, 412 (7th Cir. 2005)
(explaining that a sentencing court’s finding based on sworn testimony will not be
disturbed on appeal unless the testimony was “illogical or contradicted by
documents or other physical evidence”).
Counsel next considers whether Maul could argue that the district court
overstated his criminal history score by assigning two points to an Illinois
conviction for fraudulently obtaining a driver’s license. Maul maintained that he
got the fake license to conceal his felon status so that he could buy a gun. Since he
received three criminal history points for the firearm offenses, he objected that he
should not get additional points for obtaining the driver’s license because that
offense ostensibly was part of a “single common scheme or plan.” See U.S.S.G.
§ 4A1.2(a)(2) (prior sentences in “related cases” should be treated as a single
sentence when assessing criminal history points); United States v. Sykes, 357 F.3d
672, 675-76 (7th Cir. 2004) (prior offenses committed as part of a single scheme or
plan are related). But this potential argument would also be frivolous; even if the
district judge had treated the state and federal offenses as related, Maul’s ten other
criminal history points still would have landed him in Category V, so any error
would be harmless. See U.S.S.G. Ch.5, Pt.A; United States v. Milquette, 214 F.3d
859, 864 n.2 (7th Cir. 2000) (explaining that error in calculating criminal history
score was harmless because error did not affect criminal history category); United
States v. Newman, 144 F.3d 531, 543 (7th Cir. 1998) (explaining that guidelines
error is harmless if it does not affect sentence).
Finally, counsel and Maul discuss whether an argument could be made that a
prison term at the statutory maximum is unreasonable because it does not reward
No. 06-1687 Page 3
Maul for pleading guilty. The district court noted that Maul’s imprisonment
range—which was reduced by two levels for acceptance of responsibility, see
U.S.S.G. § 3E1.1—still would have been 30 to 37 months but for the statutory cap,
see U.S.S.G. § 5G1.1(a), and for that reason the court rejected his plea for a lower
sentence. Indeed, the court noted that Maul had received a windfall because the
government had intended to charge him with a felony but drafted the indictment
using language that alleges only a misdemeanor. See United States v. Vallery, 437
F.3d 626, 633-34 (7th Cir. 2006) (holding that indictment which does not allege
physical contact charges only a misdemeanor under 18 U.S.C. § 111(a)(1)). A
guidelines sentence is presumptively reasonable, United States v. Mykytiuk, 415
F.3d 606, 607-08 (7th Cir. 2005), and counsel and Maul are unable to construct an
argument that the court was compelled to go below the range.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.