United States v. Gilbert, James D.

NONPRECEDENTIAL DISPOSITION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 January 25, 2007*
Decided September 18, 2007
Before
Honorable FRANK H. EASTERBROOK, Chief Judge
Honorable RICHARD A. POSNER, Circuit Judge
Honorable ILANA DIAMOND ROVNER, Circuit Judge
No. 06-4272
UNITED STATES OF AMERICA, )
) Appeal from the United States
Plaintiff-Appellee, ) District Court for the Southern
) District of Indiana,
) Indianapolis Division
v. )
) No. 04 CR 203
JAMES D. GILBERT, )
) Hon. Larry J. McKinney, Chief Judge
Defendant-Appellant. )
ORDER
Appellant James D. Gilbert was convicted of possessing a firearm in
interstate commerce following a conviction for a felony offense, see 18 U.S.C. §
*
Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this successive appeal
was submitted to the panel of judges that disposed of the Gilbert’s prior appeal. See United
States v. Gilbert, 464 F.3d 674 (7th Cir. 2006).
1
2 No. 06-4272
922(g)(1), and was originally sentenced to a term of 235 months in prison. On
September 19, 2006, this court, on concluding that Gilbert’s prior Indiana conviction
for criminal confinement did not constitute a violent felony such that Gilbert could
be sentenced as a career offender, vacated his sentence and remanded for
resentencing. United States v. Gilbert, 464 F.3d 674 (7th Cir. 2006). On November
30, 2006, the district court ordered Gilbert to serve a prison term of 120 months (the
maximum term authorized by 18 U.S.C. § 924(a)(2)), to be followed by a three-year
period of supervised release.
Gilbert has again appealed. However, his counsel has concluded that Gilbert
has no issues of arguable merit to pursue at this juncture and that the instant
appeal is therefore frivolous. Counsel has filed a brief documenting his position and
seeks leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 744-45, 87
S. Ct. 1396, 1400 (1967). Counsel has identified and discussed the issues that
Gilbert might raise in the instant appeal and concluded that he has no non-frivolous
argument to make with respect to any such issue. The Anders brief is adequate on
its face. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Consequently, we confine our consideration to the potential issues that counsel has
flagged, together with the issues that Gilbert himself has raised pursuant to our
Circuit Rule 51(b) request that he respond to his counsel’s motion to withdraw and
Anders brief. See United States v. Wagner, 103 F.3d 551 (7th Cir. 1996).
Counsel correctly concludes at the outset that any issues relating to Gilbert’s
conviction would lie outside the boundaries of this appeal. The time to raise such
issues was at the first appeal. At the conclusion of that appeal, we remanded this
case to the district court solely for the purpose of re-sentencing. 464 F.3d at 682.
On remand, the district court properly confined itself to that task, see United States
v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002), and nothing that the court did or
said when it re-sentenced Gilbert opened the door to appealing anything other than
his new sentence.
Counsel next considers whether Gilbert reasonably could challenge the
enhancement to his sentencing level pursuant to section 2K2.1(b)(5) of the U.S.
Sentencing Guidelines. As relevant here, that provision calls for a four-level
enhancement if the defendant possessed a firearm in connection with another felony
offense. Based on the crack cocaine that was found in Gilbert’s possession at the
time of his arrest, the district court found, at the recommendation of the probation
officer, that Gilbert had committed another felony offense (possession of a controlled
substance) and that his possession of the firearm was connected to that offense.
Gilbert objected to the enhancement on remand, denying that he possessed cocaine
at the time of his arrest. There is a threshold question as to whether Gilbert may
have forfeited (if not waived) this objection by failing to make it at the time of his
No. 06-4272 3
original sentencing. See United States v. Lowell, 256 F.3d 463, 464 (7th Cir. 2001);
United States v. Wilson, 131 F.3d 1250, 1253-54 (7th Cir. 1997). However, setting
that problem aside, the record reveals no reasonable ground on which Gilbert might
challenge the enhancement. One of the officers who arrested Gilbert, Officer
Bolling, testified at trial that he found a baggie in Gilbert’s shoe containing a rock-
like substance that appeared to be crack cocaine. Bolling’s colleague, Officer
Walters, confirmed this discovery in his own testimony. The district judge credited
this testimony in applying the enhancement. Re-sentencing Tr. at 6 (“the truth is
reflected in the Guideline calculation”). We can discern no plausible basis for
overturning the district court’s credibility-based, factual finding. See, e.g., United
States v. Durham, 211 F.3d 437, 445 (7th Cir. 2000) (“‘arguments which simply urge
a reassessment of a district court’s credibility determinations are wasted on an
appellate court’”) (quoting United States v. House, 110 F.3d 1281, 1286 (7th Cir.
1997)).
Finally, counsel considers whether Gilbert could challenge the
reasonableness of his sentence. See United States v. Booker, 543 U.S. 220, 261, 125
S. Ct. 738, 765 (2005); United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).
Although the Sentencing Guidelines called for a sentence in the range of 140 to 175
months, because the statute permitted a sentence no longer than 120 months, a
120-month term became the advisory Guidelines sentence. U.S.S.G. § 5G1.1(a).
That was the sentence that the district court imposed, and as it is the sentence
recommended by the Guidelines, it is entitled to a presumption of reasonableness in
this court. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). In
sentencing Gilbert to that term, the district court properly considered the full range
of sentencing factors set forth in 18 U.S.C. § 3553(a). The court noted, among other
things, that Gilbert had a substantial criminal record and, in fact, committed the
instant offense less than two years after he completed a sentence for a prior offense.
Given that Gilbert’s prior sentences had not succeeded in ceasing his criminal
conduct, the court noted that a substantial sentence was necessary both to deter
him from committing further crimes and to protect the public. We have no basis on
which to conclude that the district court’s considered decision to impose the
sentence called for by the Guidelines was unreasonable. See United States v.
Gammicchia, No. 06-3325, — F.3d —, 2007 WL 2265134, at * 1 (7th Cir. Aug. 9,
2007) (“It will be the rare sentence indeed that was required under the Guidelines
before Booker but forbidden afterward, when discretion has gone up rather than
down.”) (quoting United States v. Gonzalez-Gomez, 469 F.3d 1109, 1110 (7th Cir.
2006) (emphasis in original)); see also id. at *1 (a challenge to a within-Guidelines
sentence will be in vain in most cases; counsel should file Anders brief “rather than
waste the court’s time on a lost cause”).
Gilbert, in his pro se response to the Anders brief, “contends that his 120
4 No. 06-4272
month sentence is unreasonable because the four (4) points enhancement [pursuant
to Guidelines section 2K2.1(b)(5)] deprived the sentencing court of an opportunity of
selecting a sentence within the guideline range of 100-125 months,” which is what
the range would have been without the four-level enhancement. Gilbert Response
to Anders Br. at 2. To the extent this is meant to be a challenge to the
enhancement itself, it is frivolous for the reasons already discussed. To the extent
Gilbert means to argue that the enhancement somehow precluded the court from
considering an even shorter sentence than the 120-month term it imposed, this
contention too is frivolous. After Booker, the Guidelines are advisory, so nothing
about the recommended Guidelines range constrained the court’s ability to consider
any sentence, so long as it fell between the minimum and maximum terms specified
by Congress. The district court plainly understood this.
Finally, when he filed his response, Gilbert suggested that the Supreme
Court’s then-forthcoming decisions in Rita v. United States, 127 S. Ct. 2456 (2007)
and Claiborne v. United States, 127 S. Ct. 2245 (2007) (per curiam), might have an
impact on his sentence. As it turns out, they do not. Rita holds that a court of
appeals may apply a presumption of reasonableness to a sentence that falls within
the properly-calculated Guidelines range. Rita thus endorses the approach that
this court has been following in the wake of Booker. See United States v.
Sachsenmaier, 491 F.3d 680, 684-85 (7th Cir. 2007). Claiborne was resolved on the
ground of mootness following the petitioner’s death. In any event, the question
presented in Claiborne was whether a sentence that lies outside of the advisory
Guidelines range must be justified by extraordinary circumstances. The Court will
now address that question in Gall v. United States, No. 06-7949, which will be
argued on October 2, 2007. The sentences selected by the district courts in both
Claiborne and Gall were substantially below the floor of the recommended
Guidelines range. That is obviously not true in Gilbert’s case. Here, as we have
discussed, because the statutory maximum term was below the floor of the
Guidelines range (140 months), the statutory maximum term of 120 months became
the Guidelines sentence, see U.S.S.G. § 5G1.1(a), and that is precisely the sentence
that the district court imposed. The district court understood that it had the power
to impose an even lower sentence, and it considered whether to do so in light of the
section 3553(a) sentencing factors. However, it concluded that a shorter term was
not warranted. Rita answered the relevant question, which is whether we may
presume that the within-Guidelines sentence is reasonable.
For all of these reasons, we conclude that Gilbert’s appeal is legally frivolous.
We therefore GRANT his counsel’s request to withdraw and DISMISS the appeal.