United States v. Bell, Clarence L.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 10, 2005
Decided November 15, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2280
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of Wisconsin
Plaintiff-Appellee,
No. 04-CR-182-S-01
v.
John C. Shabaz,
CLARENCE L. BELL, Judge.
Defendant-Appellant.
ORDER
In October 2004, Clarence Bell was arrested and charged with knowingly
possessing a firearm after having been convicted of a felony, in violation of 18
U.S.C. § 922(g)(1). He pleaded guilty, and the district court, relying on a
presentence report that drew no objection from Bell, calculated a guideline
imprisonment range of 92 to 115 months based on a total offense level of 23 and
criminal history category of VI. The court sentenced Bell to 115 months, explaining
that his extensive criminal history justified a sentence at the high end of the
guideline range. Bell filed a notice of appeal, but his appointed counsel now moves
to withdraw under Anders v. California, 386 U.S. 738 (1967), because she cannot
discern a nonfrivolous argument for appeal. We invited Bell to respond to counsel’s
motion, see Cir. R. 51(b), but he has not done so. Therefore, we will consider only
No. 05-2280 Page 2
the potential issues counsel identifies. See United States v. Tabb, 125 F.3d 583,
584 (7th Cir. 1997) (per curiam).
Bell has not indicated that he wants his guilty plea set aside, so counsel
appropriately avoids discussing whether Bell might argue that the plea could be
challenged as involuntary. See United States v. Knox, 287 F.3d 667, 670–71 (7th
Cir. 2002). Counsel instead focuses on Bell’s sentence, asking first whether Bell
might argue that the district court misapplied the guidelines.
Although we agree that any such challenge would be frivolous, we note one
questionable calculation that counsel fails to mention. The district court assessed
two criminal history points for a battery committed by Bell at age fourteen and
adjudicated in juvenile court. The juvenile court ordered that Bell be placed at the
Norris Adolescent Treatment Center through September 1999 for this offense, but
the guidelines allow two criminal history points for offenses committed before age
eighteen only if the offender was confined at least sixty days and released no more
than five years before commencement of the federal offense. U.S.S.G. § 4A1.2(d).
Bell apparently was released from Norris as scheduled in September 1999–more
than five years before committing his § 922(g)(1) offense in October 2004. But he
was sent to another juvenile facility in May 2000. The reason for the second period
of detention is not clear from the record, and the district court may have concluded
that Bell was still under juvenile-court supervision for the battery after his release
from Norris and was sent to the second facility for violating the terms of this
supervision. If this was the case, then Bell’s confinement for the juvenile battery
ended less than five years before his federal offense. See U.S.S.G. § 4A1.2(k)(2)(B).
We could not firmly reject this possibility based on the present record, and since our
review is limited to plain error given that Bell did not object to the guideline
calculations on this or any other ground, e.g., United States v. Jaimes-Jaimes, 406
F.3d 845, 848–49 (7th Cir. 2005), we conclude that any potential argument
premised on these two criminal history points would be frivolous.
Counsel identifies several other potential issues in her brief, and we agree
that all of them are frivolous. Bell’s sentence does not exceed the default ten-year
statutory maximum for offenses under § 922(g), see 18 U.S.C. § 924(a)(2), and for
that reason alone he could not challenge the term under Apprendi v. New Jersey,
530 U.S. 466 (2000), even if prior convictions were not already excluded from the
rule of Apprendi by Almendarez-Torres, 523 U.S. 224 (1998). See, e.g., United
States v. Kibler, 279 F.3d 511, 517 (7th Cir. 2002) (explaining that rule of Apprendi
does not apply if sentence imposed is within default statutory maximum).
Moreover, the district court considered the guidelines to be advisory in accordance
with United States v. Booker, 125 S. Ct. 738 (2005), so there is no issue there.
Finally, Bell cannot plausibly argue that his prison sentence is unreasonable. A
sentence within a properly calculated guideline range is presumptively reasonable,
No. 05-2280 Page 3
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel is unable
to identify any factor under 18 U.S.C. § 3553(a) that might allow us to conclude
that the sentencing court was compelled to impose a lower sentence.
For the foregoing reasons, we GRANT counsel’s motion and DISMISS the
appeal.