United States v. Gotelaere, Timothy

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 18, 2007
Decided July 19, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 07-1066
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Western District of Wisconsin
v.
No. 06-CR-140-C-01
TIMOTHY D. GOTELAERE,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Timothy Gotelaere donned a yellow sweatshirt and sunglasses, entered the
Superior Community Credit Union in Superior, Wisconsin, displayed what
appeared to be a gun in the waistband of his pants, and presented to a teller a note
that said “[n]o dye packs or bait bills.” The teller handed over $3,250 in cash, $40 of
which was left on the counter when Mr. Gotelaere fled. He was caught after police
officers found him hiding in the woods near his (stolen) vehicle, which had become
stuck on railroad tracks. Police officers recovered from the vehicle Mr. Gotelaere’s
wallet, a yellow sweatshirt, sunglasses, and a receipt for the toy gun that Mr.
Gotelaere had displayed to the teller. Mr. Gotelaere pleaded guilty to robbing the
No. 07-1066 Page 2
credit union using a dangerous weapon, see 18 U.S.C. § 2113(a), (d), and the district
court sentenced him to 210 months’ imprisonment and five years’ supervised
release. Mr. Gotelaere filed a timely notice of appeal, but his appointed counsel now
moves to withdraw because he cannot discern a nonfrivolous basis for appeal. See
Anders v. California, 386 U.S. 738, 744 (1967). We invited Mr. Gotelaere to respond
to counsel’s brief, see Cir. R. 51(b), but he has not. We therefore limit our review to
the potential issues identified in counsel’s facially adequate brief. See United States
v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Mr. Gotelaere could challenge the calculation
of his recommended guidelines range. Mr. Gotelaere raised no objections in the
district court, so our review would be for plain error. See United States v. Wilson,
437 F.3d 616, 621 (7th Cir. 2006). The district court calculated Mr. Gotelaere’s
offense level at 34, which reflected his status as a career offender, see U.S.S.G.
§ 4B1.1(a), and his use of a dangerous weapon to rob the credit union, see 18 U.S.C.
§ 2113(d); U.S.S.G. § 4B1.1(b)(B). (As counsel notes, it would be frivolous to
challenge the district court’s finding that the toy gun qualified as a dangerous
weapon for purposes of § 2113(d), see United States v. Hargrove, 201 F.3d 966, 968
n.2 (7th Cir. 2000)). The district court subtracted three levels for acceptance of
responsibility, resulting in an offense level of 31, which when coupled with a
criminal history category of IV, yielded a guidelines imprisonment range of 188 to
235 months. We agree with counsel that any challenge to the calculation of
Mr. Gotelaere’s offense level would be frivolous.
Counsel next considers whether Mr. Gotelaere could challenge the
reasonableness of his sentence. Counsel advises, however, that the district court
properly calculated Mr. Gotelaere’s guidelines range, considered the factors set
forth in 18 U.S.C. § 3553(a), and addressed and rejected Mr. Gotelaere’s mitigating
arguments. See United States v. Laufle, 433 F.3d 981, 987-88 (7th Cir. 2006). The
district court found that a sentence at the middle of the guidelines range was
necessary “to meet the statutory purposes of sentencing”; despite Mr. Gotelaere’s
unhappy past, which included prevalent sexual and physical abuse, the court found
that his criminal history and violence were extreme, and he “is a serious danger to
the community.” See 18 U.S.C. § 3553(a)(1), (2)(A), (2)(C). The district court found
that the sentence imposed would “protect society,” hold Mr. Gotelaere “accountable
for [his] criminal conduct,” and “provide him with needed correctional treatment,”
including substance abuse education and treatment programs and mental health
treatment programs. See id. § 3553(a)(1), (2)(C), (2)(D), (4)(A). Counsel notes that
this circuit accords sentences within the properly calculated guidelines range a
rebuttable presumption of reasonableness. The Supreme Court recently upheld the
use of such a rebuttable presumption, see Rita v. United States, No. 06-5754, 2007
WL 1772146 (June 21, 2007); United States v. Sachsenmaier, ___ F.3d ___, No. 05-
3505, 2007 WL 1839282, at *4 (7th Cir. June 28, 2007), and we agree with counsel
No. 07-1066 Page 3
that any potential challenge to the reasonableness of Mr. Gotelaere’s sentence
would be frivolous.
Finally, counsel considers whether Mr. Gotelaere could claim that his trial
counsel was ineffective. He correctly notes, however, that such claims are more
properly raised through a collateral attack. See, e.g., United States v. Rezin, 322
F.3d 443, 445 (7th Cir. 2003).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.