United States v. Storm, Daniel

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005
Decided August 11, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3431
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 03-CR-143
DANIEL T. STORM,
Defendant-Appellant. Charles N. Clevert, Jr.,
Judge.
ORDER
Daniel Storm was arrested after flying a small plane packed with marijuana
from Texas to Wisconsin. After executing a written plea agreement, Storm pleaded
guilty to conspiring to distribute and possess with intent to distribute marijuana,
21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 79 months’ imprisonment and five
years’ supervised release. Storm filed a notice of appeal, but his counsel contends
that there are no nonfrivolous issues to argue and seeks permission to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Counsel has filed a facially adequate
brief in support of that motion. Storm, for his part, has accepted our invitation to
respond, see Cir. R. 51(b). Limiting our review to potential issues identified in
counsel’s brief and Storm’s response, see United States v. Schuh, 289 F.3d 968,
No. 04-3431 Page 2
973–74 (7th Cir. 2002), we agree with counsel that raising these potential issues
would be frivolous.
Counsel first asks whether Storm could challenge his guilty plea, but she
informs us that Storm does not want to withdraw that plea. Therefore, counsel
appropriately omits any potential issues relating to the plea colloquy or
voluntariness. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Next, counsel considers whether Storm might argue that a criminal history
point assessed for a prior municipal sentence was error because that sentence was
imposed upon Storm’s failure to appear in court rather than upon a merits hearing
to determine his guilt. The sentence resulted from Storm’s violation of a local
ordinance codifying the state crime of damage to property, Wis. Stat. § 943.01. If
the ordinance violated also constitutes a crime under state law, then a municipal
sentence counts towards a defendant’s criminal history. See U.S.S.G. § 4A1.2(c)(1)
& comment. (n.12). That is so even if the sentence was imposed as a result of the
defendant’s failure to appear rather than after a hearing. United States v. Skoczen,
405 F.3d 537, 551 (7th Cir. 2005); United States v. Jiles, 102 F.3d 278 (7th Cir.
1996). And contrary to a suggestion by Storm, the sentence must count even if he
did not have a lawyer before the municipal court, see Nichols v. United States, 511
U.S. 738 (1994).
Additionally, counsel explores whether Storm might argue that the district
court should have treated three sets of prior prison sentences exceeding one year
and one month as a single sentence—for a combined three points rather than the
nine the court actually assessed—because the sentences were imposed in “related
cases.” These prior sentences arose from convictions for: 1) consolidated federal
offenses committed in 1986 including conspiracy to distribute cocaine,
2) consolidated federal offenses of attempted tax evasion and dealing in firearms
without a license, both committed during 1985, and 3) a Wisconsin state
misdemeanor of false swearing as a habitual offender for testimony given during
1988 and 1994.
Prior sentences are considered related only if they resulted from offenses that
occurred on the same occasion, were part of a single common scheme or plan, or
were consolidated for trial or sentencing. United States v. Brown, 209 F.3d 1020,
1023 (7th Cir. 2000). Because Storm’s offenses neither occurred on the same
occasion nor were all consolidated together, counsel explains that they could be
related only if they were part of a single common scheme or plan—which is to say
that Storm intended to commit the crimes from the outset or that committing one
crime entailed committing the other, see United States v. Sykes, 357 F.3d 672,
675–76 (7th Cir. 2004); Brown, 209 F.3d at 1023. Storm suggests, however, that
the offenses were part of the same scheme or plan because they involved a common
No. 04-3431 Page 3
thread, namely $90,000 that he obtained in the 1986 drug conspiracy, that (he says)
he failed to report on his 1985 income taxes, and that was the subject of his perjury
in 1998 while in prison. Yet counsel correctly observes that such an argument
would fail without evidence that Storm intended to commit all these crimes from
the outset. Counsel also notes that, in any case, Storm introduced no evidence to
show that the firearms offense (which itself resulted in a five-year consecutive
sentence) was in any way part of a common scheme or plan with the 1986 drug
conspiracy or false-swearing cases. Moreover, as counsel notes, prior cases are
unrelated if separated by an intervening arrest, U.S.S.G. § 4A1.2 comment. (n.3);
United States v. Morgan, 354 F.3d 621, 623 (7th Cir. 2003), and here Storm’s arrest
for the drug conspiracy separated the other offenses from the state offense of false
swearing.
Counsel next considers whether Storm could argue that the district court
erred by sentencing him under the formerly mandatory regime, see United States v.
Booker, 125 S. Ct. 738 (2005). But counsel explains that Storm—even though he
was aware of this court’s holding in United States v. Booker, 375 F.3d 508 (7th Cir.
2004)—requested to be sentenced under the guidelines as mandatory. And now,
Storm continues to insist in his response that any resentencing must be done under
the mandatory regime because, he says, that’s what was promised in his plea
agreement. This constitutes a waiver of his right to be sentenced under the new
advisory regime. We enforce such waivers. See United States v. Peterson, Nos.
04-2807, 04-2856, 2005 WL 1661259, at *3 (7th Cir. July 18, 2005); United States v.
Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005).
Finally, we disagree with baseless suggestions in Storm’s response that he
might argue that the district court erred by imposing a condition of supervised
release requiring him to provide his probation officer with access to personal
financial information or a condition requiring drug testing.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS Storm’s
appeal.