United States v. Poole, Joseph H.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2006
Decided March 24, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4019
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 04-CR-77
JOSEPH H. POOLE,
Defendant-Appellant. Rudolph T. Randa,
Chief Judge.*
ORDER
Joseph Poolepleaded guilty to conspiracy to commit bank robbery, 18 U.S.C.
§§ 371, 2113(a), and was sentenced to the statutory maximum of 60 months in
prison. His plea agreement provided that in exchange for his guilty plea on the
conspiracy count, which encompassed offense conduct in Oregon, Washington,
Oklahoma, and Wisconsin, the government would drop three substantive charges of
bank robbery. Poole’s conviction followed close on the heels of April 2005
convictions for armed bank robberies committed in Illinois and carrying a firearm
during those robberies; he was sentenced to 272 months’ imprisonment for those
offenses. The district court in this case ordered that Poole’s 60-month sentence run
consecutively with the 272-month sentence. Poole filed a notice of appeal but his
*
Chief Judge, United States District Court for the Eastern District of Wisconsin,
sitting by designation.
No. 05-4019 Page 2
appointed counsel submitted a motion to withdraw from the representation under
Anders v. California, 386 U.S. 738 (1967), arguing that any appeal would be
frivolous. We invited Poole to respond, Circuit Rule 51(b), but he has not done so.
Since counsel’s brief is facially adequate, we limit our review to the issues that it
raises. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
First counsel briefly explores whether Poole could argue that his guilty plea
was not knowing and voluntary, but since Poole has not indicated that he wishes to
withdraw his plea any consideration of the issue would be inappropriate. See
United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel next questions whether Poole could challenge the district court’s
calculation of his guideline range. With a criminal history score of III and an
offense level of 29, Poole’s range as initially calculated was 108–135 months. This
included a five-level upward adjustment for the fact that Poole conspired to commit
multiple robberies, U.S.S.G. §§ 1B1.2(d), 3D1.4. In the district court Poole
challenged the presentence report’s (PSR’s) recommendation of the adjustment,
arguing that the court should not consider as offense conduct all nine bank
robberies involved in the conspiracy. His argument, if accepted, would have
lowered his guideline range to 63–78 months. But the district court rejected the
contention and any appellate challenge to this decision would be frivolous. Since
Poole’s guideline range (either as initially calculated or as he would have liked it)
exceeded the statutory maximum of 60 months, 18 U.S.C. § 371, the statutory
maximum became the guidelines sentence. U.S.S.G. 5G1.1(a); United States v.
Dean, 414 F.3d 725, 727 (7th Cir. 2005). Thus any error in imposing the
adjustment would have had no impact on Poole’s sentence. And regardless, in the
district court he offered nothing more than a general objection to the PSR’s detailed
discussion of the offense conduct underlying the conspiracy charge. A bare objection
without any supporting evidence is insufficient to undermine the district court’s
reliance on a PSR that otherwise contained sufficient indicia of reliability. See
United States v. Sumner, 325 F.3d 884, 890 (7th Cir. 2003); United States v.
Hughey, 147 F.3d 423, 437–38 (5th Cir. 1998).
Next counsel asks whether Poole could argue that the district court erred by
imposing the sentence consecutively with the sentence that Poole was already
serving for his bank robbery convictions. The district court had broad discretion to
choose between concurrent and consecutive sentences in arriving at an appropriate
punishment. 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c). Moreover, in reaching its
decision the district court properly considered Poole’s extensive criminal history and
resistance to rehabilitation, the length of his existing sentence, and the need for
deterrence and punishment. 18 U.S.C. § 3553(a); U.S.S.G. § 5G1.3(c) Application
Note 3. We agree with counsel that any challenge to this portion of the sentence as
an abuse of discretion would be frivolous. See United States v. Johnson, 324 F.3d
No. 05-4019 Page 3
875, 878 (7th Cir. 2003); United States v. Dvorak, 115 F.3d 1339, 1344 (7th Cir.
1997).
Finally, counsel considers whether Poole could argue that his sentence was
unreasonable. See United States v. Booker, 543 U.S. 220, 260–61 (2005). But a
sentence within the guideline range—remember, Poole’s statutory maximum
sentence is his guidelines sentence—is presumptively reasonable, United States v.
Mykytiuk, 415 F.3d 606 (7th Cir. 2005), and Poole’s decision not to reply to counsel’s
motion to withdraw means that he has not shown us why that presumption should
be rebutted. We do not see any such reason in our own review.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.