United States v. Yoakum, Earl C.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2006
Decided June 20, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3355
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No.03-30093-001
EARL C. YOAKUM, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
After threatening two men with a shotgun, Earl Yoakum pleaded guilty to
possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). In his plea agreement
he waived the right to appeal his conviction and sentence, except that he reserved
the right to challenge “a finding that his sentencing guideline range was higher
than” as stipulated in the agreement. The parties stipulated that Yoakum’s
guidelines range was 84 to 105 months based on a total offense level of 25 and a
tentative prediction that his criminal history category would be IV. But the
presentence investigation turned up much more criminal history—34 criminal
history points, to be exact—leading the probation officer to conclude that Yoakum’s
criminal history category was VI. The sentencing court relied on that conclusion
No. 05-3355 Page 2
and determined Yoakum’s guidelines range to be 110 to 120 months. (The high end
of the range was technically 137 months, but the offense carries a 10-year statutory
maximum. See 18 U.S.C. § 924(a)(2).) The court then explained that it would have
ordered Yoakum’s sentence to run concurrently with the undischarged portion of a
state sentence he was already serving, but it could not because while Yoakum’s
federal sentencing was delayed for seven months he completed his state sentence.
The court took those seven months into account in sentencing Yoakum to 103
months’ imprisonment, followed by three years’ supervised release.
This case comes to us on counsel’s motion to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), because she cannot discern a nonfrivolous basis for
appeal. Yoakum has not responded to our notice under Circuit Rule 51(b). We
therefore review only the potential issues identified by counsel. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers arguing that Yoakum’s guilty plea was not knowing
and voluntary. But she does not suggest that Yoakum wants his plea set aside, so
the point should not have been addressed. See United States v. Knox, 287 F.3d 667,
670-72 (7th Cir. 2002). And since Yoakum has not indicated that he wants the plea
agreement set aside, any argument not reserved in his appeal waiver would be
frivolous. See United States v. Lockwood, 416 F.3d 604, 607 (7th Cir. 2005)
(explaining that Rule 11 does not allow piecemeal acceptance of portions of plea
agreement); United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver of
appeal is valid, and must be enforced, unless the agreement in which it is contained
is annulled”).
Counsel is left with the only potential argument reserved by the appeal
waiver—that the guidelines range determined by the sentencing court is too high.
But this argument would be frivolous because the court was not bound by the
stipulated range in the plea agreement, see Fed. R. Crim. P. 11(c)(1)(B)
(establishing that government’s recommendation of particular sentence in plea
agreement does not bind court); U.S.S.G. § 6B1.4(d) (stating that court is not bound
by stipulation in plea agreement); United States v. Mankiewicz, 122 F.3d 399, 403
n.1 (7th Cir. 1997) (“[A]s the Guidelines themselves make clear, although the plea
agreement binds the parties, it does not bind the court.”), and the agreement itself
recognizes that Yoakum’s anticipated criminal-history category could change upon
completion of the presentence investigation. Most importantly, counsel is unable to
suggest any possible error in Yoakum’s criminal history score.
Counsel’s motion to withdraw is therefore GRANTED and the appeal
DISMISSED.