United States v. Reginald Thurmond

NONPRECEDENTIAL DISPOSITION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 August 12, 2009
Decided August 13, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08-3847
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 07 CR 593
REGINALD THURMOND,
Defendant-Appellant. Virginia M. Kendall,
Judge.
ORDER
Reginald Thurmond pleaded guilty to bank robbery, see 18 U.S.C. § 2113(a), and was
sentenced to 160 months in prison. Thurmond appeals, but his appointed lawyers cannot
identify any nonfrivolous arguments to pursue and move to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Thurmond opposes counsel’s motion. See C IR. R. 51(b).
We confine our review to the potential issues outlined in counsel’s facially adequate brief
and in Thurmond’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
In Thurmond’s presentence investigation report, the probation officer applied a base
offense level of 20, see U.S.S.G. § 2B3.1(a), with two additional levels for taking property
from a financial institution, see id. § 2B3.1(b)(1), two more levels for making a death threat
No. 08-3847 Page 2
to a bank employee, see id. § 2B3.1(b)(2)(F), and a three-level reduction for acceptance of
responsibility, see id. § 3E1.1, for a total offense level of 21. The probation officer noted,
however, that Thurmond met the criteria for a career offender, see id. § 4B1.1(a), and since
the maximum penalty for the robbery was 20 years, see 18 U.S.C. § 2113(a), the
corresponding offense level was 32, see U.S.S.G. § 4B1.1(b)(C). With credit for acceptance of
responsibility, see id. § 3E1.1, his total offense level was 29. That number coupled with a
criminal history category of VI yielded a guidelines imprisonment range of 151 to 188
months. The district court adopted the probation officer’s calculations and imposed a term
of 160 months.
In their Anders submission, counsel first consider whether Thurmond could
challenge his guilty plea. Thurmond, though, has told counsel that he does not want the
plea set aside, and so counsel appropriately omit any discussion of the plea colloquy or the
voluntariness of Thurmond’s guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002).
Counsel then question whether Thurmond might challenge his classification as a
career offender. Thurmond has insisted that counsel should dispute the classification, but
he did not object at sentencing, and counsel cannot identify any potential error. The district
court concluded that Thurmond met all the requirements of a career offender: (1) he was 44
when he committed the bank robbery; (2) the offense is a felony crime of violence, see
U.S.S.G. § 4B1.2 cmt. n.1; and (3) Thurmond has two prior convictions for aggravated
robbery, both felony crimes of violence, see id. Even though the first of those convictions
was 17 years before the current offense, Thurmond was still incarcerated on that charge
within the last 15 years. Both prior convictions are thus within the relevant time limit of
U.S.S.G. § 4A1.2(e)(1). See United States v. Hillsman, 141 F.3d 777, 778-79 (7th Cir. 1998).
Any challenge to the career offender classification would be frivolous.
Counsel also consider whether Thurmond could argue that his prison sentence is
unreasonable. Although a sentence within a properly calculated guidelines range is
presumed reasonable, Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.
Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir. 2009), the district court must consider the
relevant statutory sentencing factors, see 18 U.S.C. § 3553(a); United States v.
Martinez-Martinez, 442 F.3d 539, 543 (7th Cir. 2006). The sentencing transcript shows that
the district court assessed those factors, including Thurmond’s extensive violent criminal
history, his difficult childhood in a gang-infested neighborhood, the serious nature of the
offense (including the death threat to the bank employee), his history of depression, see 18
U.S.C. § 3553(a)(1), and the need to protect society from further crimes, see id.
§ 3553(a)(2)(C).
No. 08-3847 Page 3
In his Rule 51(b) response, Thurmond questions whether the district court
potentially erred by failing to give him a lower sentence based on the conditions of his
pretrial confinement at the jail in Kankakee County, in particular the lack of federal legal
materials and restrictions on outdoor recreation. The district court did not think that
pretrial conditions were relevant to § 3553(a), nor did the court believe that the conditions
at Kankakee were so substandard as to require a reduction in sentence.
Conditions of pretrial confinement are not included in the § 3553(a) factors, United
States v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008), and we have yet to decide whether
even extremely harsh conditions of confinement can justify a reduced sentence, see United
States v. Campos, 541 F.3d 735, 751 (7th Cir. 2008). And this appeal would not provide an
opportunity to decide that question because the district court did not think that the
conditions Thurmond complained about were harsh at all. See United States v.
Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007) (distinguishing conditions at Kankakee
from those deemed by other circuits to be unusually harsh); compare United States v.
Pressley, 345 F.3d 1205, 1219 (11th Cir. 2003); United States v. Carty, 264 F.3d 191, 193 (2d Cir.
2001). The court appropriately considered Thurmond’s argument and circumstances, and
declined his request for a shorter prison term. Any argument that the court was compelled
to do more than that would be frivolous. See Campos, 541 F.3d at 751; Ramirez-Gutierrez, 503
F.3d at 646.
We therefore GRANT counsel's motion to withdraw and DISMISS the appeal.