458 F. App'x 568
7th Cir.2012Background
- Green pleaded guilty in 2010 to unlawful possession of a firearm by a felon and was sentenced to 63 months’ imprisonment.
- Green appealed and counsel moved to withdraw under Anders v. California; Green did not respond.
- The court limited review to issues identified in counsel’s brief and did not discuss voluntariness of the plea or Rule 11 compliance.
- Counsel argued the district court erred by applying § 2K2.1(a)(2) based on a 1997 look-alike conviction under Illinois law.
- Counsel argued the criminal history calculation was improper because two sentences on the same day (armed-robbery and look-alike convictions) should count as one prior sentence, but revocations count separately.
- The court found the 63-month sentence within a proper guidelines range and noted the § 3553(a) factors were appropriately considered; the appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether look-alike conviction supports base level | Green (via White's case) argues look-alike not a controlled-substance offense. | Green contends § 2K2.1(a)(2) misapplies to look-alike conviction. | Frivolous; claim rejected |
| Whether revocation and look-alike sentences were properly counted | Same-day sentences should count as a single prior sentence. | Revocations counted separately from convictions; challenge frivolous. | Frivolous; challenge rejected |
| Whether the sentence was reasonable under § 3553(a) | Sentence might be excessive or not reasonably tailored to the offense. | Sentence within guidelines range and properly reasoned. | Frivolous; presumption of reasonable support |
Key Cases Cited
- Anders v. California, 386 F.2d 738 (Supreme Court 1967) (procedural rules for counsel to withdraw on frivolous-appeal basis)
- Knox, 287 F.3d 667 (7th Cir. 2002) (treats voluntariness of plea and Rule 11 compliance where not contested)
- Rita v. United States, 551 U.S. 338 (2007) (presumptively reasonable sentence within properly calculated range)
- United States v. Nurek, 578 F.3d 618 (7th Cir. 2009) (application of reasonableness presumption post-Rita)
- United States v. Brown, 638 F.3d 816 (8th Cir. 2011) (upholds look-alike statute-based base-level adjustments)
- United States v. Hudson, 618 F.3d 700 (7th Cir. 2010) (look-alike and state-substitution statutes context)
- United States v. Mills, 485 F.3d 219 (4th Cir. 2007) (look-alike lookalike-substance offenses precedent)
- United States v. Robertson, 474 F.3d 538 (8th Cir. 2007) (Illinois look-alike-type statutes and sentencing)
- United States v. Crittenden, 372 F.3d 706 (5th Cir. 2004) (interpretation of state-look-alike statutes in sentencing)
- United States v. Eubanks, 593 F.3d 645 (7th Cir. 2010) (separate counting of revocations in criminal-history)