United States v. Thompson, Timothy

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
March 20, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
UNITED STATES OF AMERICA, ] Appeal from the United
Plaintiff-Appellee, ] States District Court for
] the Northern District of
No. 05-1374 v. ] Illinois, Eastern Division.
]
TIMOTHY L. THOMPSON, ] No. 02 CR 196
Defendant-Appellant. ]
] Ronald A. Guzman,
] Judge.
Timothy Thompson was found guilty of bank robbery, and the district court
sentenced him to 100 months’ imprisonment, the bottom of the calculated
sentencing range. On appeal, Thompson filed a motion for a limited remand for
consideration of whether resentencing would be appropriate following United
States v. Booker, 543 U.S. 220 (2005). We granted the motion and ordered a limited
remand under the terms set forth in United States v. Paladino, 401 F.3d 471, 483-
84 (7th Cir. 2005), for a determination whether the district court would have
imposed the same sentence had it understood that the guidelines were advisory.
The district court has now replied that it would today impose the same
sentence, knowing of the Guidelines’ advisory status. The parties were offered the
opportunity to respond before we finally resolved the appeal, and both parties have
responded. Counsel for Timothy Thompson responds that “it appears there are no
nonfrivolous sentencing issues left to be decided,” but he nonetheless asks that a
briefing schedule be set, indicating that he likely would file an Anders brief and
that Thompson should be afforded the chance to reply.
No. 05-1374 2
In the first motion for a limited remand counsel filed, it appeared that
counsel might be operating under the mistaken assumption that he could brief
additional issues following resolution of the limited remand. The court therefore
denied counsel’s first remand motion without prejudice to renewal and informed
counsel that if he intended to raise any issue other than a Booker issue, then a
remand would be premature. Counsel renewed the motion, asserting that the only
issue he planned on raising was a Booker issue, and the court granted a limited
remand based on that representation of the appellate issues. Although counsel
subsequently indicated to the court that Thompson might want to raise other
issues, appellate counsel need not raise all possible claims. Smith v. Robbins, 528
U.S. 259, 288 (2000); Jones v. Barnes, 463 U.S. 745 (1983); Page v. United States,
884 F.2d 300, 302 (7th Cir. 1989) (“One of the principal functions of appellate
counsel is winnowing the potential claims so that the court may focus on those with
the best prospects.”). Had counsel filed an opening brief raising only a Booker issue
rather than a remand motion, Thompson would have had no right to respond or
supplement the brief. See Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir. 2000) (There
is no Sixth Amendment right to file a pro se brief when represented by counsel.).
Similarly, he does not have a right to respond under the Paladino remand
procedure established by the court, and further briefing in the appeal is not
warranted.
Thompson’s sentence is within the properly calculated guideline range and
therefore presumptively reasonable. See United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Thompson does not offer any evidence based on the factors
recognized by 18 U.S.C. § 3553(a) that would tend to rebut that presumption.
Because the district court would have imposed the same sentence post-Booker, and
because that sentence is reasonable, we conclude that Thompson’s sentence was not
the result of plain error. Accordingly, we AFFIRM the judgment of the district
court.