United States v. Davis, Charles V.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006
Decided December 15, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1774
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 05-10068-001
CHARLES V. DAVIS, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Charles Davis pleaded guilty without a plea agreement to possessing a gun
as a felon, see 18 U.S.C. § 922(g), and was sentenced to 120 months’ imprisonment.
Davis filed a timely notice of appeal, but his appointed counsel now seeks to
withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders
v. California, 386 U.S. 738 (1967). Because Davis has not accepted our invitation to
comment on counsel’s motion, see Cir. R. 51(b), our review is limited 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 there are any nonfrivolous issues to be raised
regarding Davis’s conviction. Counsel correctly notes that an “unconditional guilty
plea waives all non-jurisdictional defects occurring prior to the plea.” United States
No. 06-1774 Page 2
v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir. 2001). Accordingly, the only
potential issue Davis could raise on appeal about his conviction is whether he
knowingly and voluntarily entered his guilty plea. But counsel consulted with
Davis, who advised that he does not want his guilty plea set aside; thus, counsel
appropriately avoids any discussion about the adequacy of the guilty plea colloquy
or the voluntariness of Davis’s plea. See United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002).
Counsel next considers whether Davis could challenge the reasonableness of
his prison sentence. Counsel cites two factors that at sentencing Davis argued
would justify a term below the guidelines range: first, that Davis showed
extraordinary acceptance of responsibility by pleading guilty knowing he might be
sentenced to the statutory maximum and, second, that Davis was already serving a
prison sentence for a state parole revocation based on the offense conduct
underlying the instant offense. But the district court considered both points along
with the factors specifically enumerated in 18 U.S.C § 3553(a) before ultimately
sentencing Davis to the statutory maximum, which was at the lowest end of the
applicable guidelines range. We ordinarily presume that any sentence within the
advisory guidelines range is reasonable. See United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). But whether or not we applied the presumption here, we
would conclude, as does counsel, that it would be frivolous for Davis to argue that
his prison term is unreasonable. See United States v. Rita, No. 05-4674, 2006 WL
1144508 (4th Cir. 2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No.
06-5754) (granting writ of certiorari to decide whether it is consistent with Booker
to accord a presumption of reasonableness to a sentence within the guidelines
range). Counsel can identify no error in the district court's calculation of the
guidelines range and correctly notes that the district court gave detailed and
meaningful consideration to the relevant factors under § 3553(a), which is all it was
required to do. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006).
Accordingly, counsel's motion to withdraw is GRANTED, and the appeal is
DISMISSED.