United States v. Coles, Dennis

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 2, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-1451
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Central District of Illinois.
v.
No. 00-CR-20051
DENNIS COLES,
Defendant-Appellant. Michael P. McCuskey, Judge.
ORDER
Dennis Coles was convicted, after a 2002 jury trial, of having possessed a firearm as a
convicted felon, 18 U.S.C. § 922(g). His record of five felony convictions made him an armed career
criminal under 18 U.S.C. § 924(e). He was sentenced in 2003 to a term of 293 months imprisonment.
On appeal, Coles’ lawyer sought to withdraw under Anders v. California, 386 U.S. 738(1967), because he was unable to find a nonfrivolous issue to pursue. On May 3, 2004, we entered an
order concluding that the potential appeal issues identified by defense counsel were frivolous. We then
granted counsel’s motion to withdraw and dismissed Coles’ appeal.
Coles petitioned for a rehearing (and rehearing en banc) and requested and received permission
to file supplemental briefs. His petition was pending when the Supreme Court issued its decision in
United States v. Booker, 125 S. Ct. 738 (2005). On May 19, 2005, we retained jurisdiction in the
No. 03-1451 2
case and ordered a limited remand, pursuant to the procedures set forth in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005). We directed the sentencing judge to consider whether he “would (if
required to resentence) reimpose his original sentence.” We explained that “if the district court would
reimpose the same sentence, we will affirm that sentence so long as it is reasonable. If the court would
impose a different sentence, we will vacate and remand for resentencing.”
On limited remand, consistent with the procedures set forth in Paladino, the parties submitted
written statements on the question whether the court would adhere to the original sentence in light of the
now-advisory nature of the sentencing guidelines. The district court considered those positions, as well
as a letter from the defendant and the defendant’s daughter, “the arguments of counsel, the defendant’s
arguments, the advisory Sentencing Guidelines, the reasons for the original sentence, and the factors set
forth in 18 U.S.C. § 3553(a).” The district court concluded that, if given the opportunity, it would
impose the same 293-month sentence under the now-advisory sentencing guidelines based on the
defendant’s criminal history and the nature of the offense. As District Judge McCuskey explained:
This court notes that it imposed the maximum guidelines sentence in his
case. In imposing this sentence, this court considered the number of
firearms involved in the offense and the evidence which showed that
Defendant was an organizer, leader or manager because he directed
Sabrina Hall to obtain the firearms. This court also considered the fact
that Defendant testified falsely both at the hearing on Defendant’s
Motion to Suppress and at trial, resulting in an obstruction of justice.
This court still believes that the sentence imposed was warranted under
the facts of this case, considering all of the factors set out in 18 U.S.C.
3553(a). This court would, therefore, adhere to its original sentence in
this case.
(App. 4)
In an order dated August 9, 2005, we invited the parties to submit arguments concerning the
appropriate disposition of this appeal in light of the district court’s decision. Having now considered the
submissions, we affirm Coles’ sentence. The 293-month sentence was, we conclude, reasonable.
Coles’ petition for rehearing is DENIED. No judge called for a vote on the petition for rehearing en
banc, so that petition is also DENIED.