United States v. Sisco, Merlyn E. , 176 F. App'x 692 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006
Decided April 20, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2761
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 04 CR 10001
MERLYN E. SISCO, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
A grand jury charged Merlyn E. Sisco with one count of possession of child
pornography, 18 U.S.C. § 2252A(a)(5)(B), and a forfeiture count stemming from that
offense, id. § 2253(b). After initially pleading not guilty, he changed his plea to guilty
without benefit of a plea agreement. The district court sentenced him to 108
months’ imprisonment to be followed by a lifelong term of supervised release. Mr.
Sisco filed a timely notice of appeal, but his appointed counsel now moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern
a nonfrivolous basis for the appeal. We invited Mr. Sisco to file a Cir. R. 51(b)
No. 05-2761 Page 2
response, but he has not done so. Our review is therefore confined to the potential
issues counsel identifies in his facially adequate brief. See United States v. Maeder,
326 F.3d 892, 893 (7th Cir. 2003); United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002).
Counsel first asks whether there are any nonfrivolous issues to be raised
regarding Mr. Sisco’s conviction. Counsel correctly notes that an “unconditional
guilty plea waives all non-jurisdictional defects occurring prior to the plea.” United
States v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir. 2001). Accordingly, the only
issue with regard to the conviction that could be raised on appeal would be whether
Mr. Sisco knowingly and voluntarily entered the plea. But counsel consulted with
Mr. Sisco, who expressed no interest in having his guilty plea set aside; counsel thus
appropriately avoids any discussion about the adequacy of the guilty plea colloquy or
the voluntariness of his plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002).
Counsel also considers a potential issue concerning sentencing disparities. Mr.
Sisco argued at sentencing that three previous defendants in the same district court
who had committed worse child pornography crimes had received lesser sentences
than he faced under the Guidelines, and that he should therefore receive a sentence
below the guideline range in order to avoid an unwarranted sentencing disparity. See
18 U.S.C. § 3553(a)(6). He named the three defendants to whom he was comparing
his own case, but did not identify the cases with a specific citation or case number.
Counsel concludes that it would be frivolous to argue on appeal that the district court
erred by rejecting this argument, and we concur. Mr. Sisco presented only cursory
facts about the cases he compared to his own. As we have stated:
It is not enough for a defendant to argue that a few cases from any particular
circuit seem to cast doubt on his sentence. In addition, one needs to know
more than the crime of conviction and the total length of the sentence to
evaluate disparities; the specific facts of the crimes and the defendant’s
individual characteristics are also pertinent.
United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005). In any event, the
information that Mr. Sisco did provide about those cases, and which the government
supplemented at the sentencing hearing, reflected substantial differences in the facts
and circumstances of those cases and his own. Mr. Sisco admitted that the sentence
in one of the cases involved an upward departure and that the other two involved
defendants who actually physically molested children. These sentences are thus
distinguishable from his own. Accordingly it would be frivolous to argue that the
district court erred by refusing to sentence Mr. Sisco below the advisory guidelines
No. 05-2761 Page 3
range in order to bring his sentence in line with sentences handed down in factually
dissimilar cases.
Counsel next considers arguing that Mr. Sisco’s sentence is unreasonable
because the district court refused his request for a sentence below the guideline
range to reflect his substantial assistance to the government. See U.S.S.G. § 5K1.1.
“In the wake of Booker, we have concluded that discussion of a district court’s
departure decisions has been rendered ‘obsolete.’” United States v. Laufle, 433 F.3d
981, 986 (7th Cir. 2006) (quoting United States v. Arnaout, 431 F.3d 994, 1003-04
(7th Cir. 2005)). Instead, “[t]he district court’s obligation in every instance is to
consult the Guidelines and, taking into account the sentencing factors set forth in
section 3553(a), to impose a reasonable sentence.” Id. at 987. The proper question is
whether the sentence is reasonable in light of all relevant sentencing factors, one of
which is the nature and degree of Mr. Sisco’s assistance. See id. However, there is
no suggestion in the record that Mr. Sisco provided substantial assistance to the
Government in the prosecution of others, and his cooperation with the Government
in his own prosecution was accounted for in the guideline sentence. Consequently,
any argument that Mr. Sisco’s sentence is unreasonable based on his cooperation
with the Government would be frivolous.1
Finally, counsel weighs an argument that it was error for the district court to
reject Mr. Sisco’s request for a below-range sentence in consideration of his harsh
childhood. Mr. Sisco contended at sentencing that the abuse he suffered as a child
should be taken into account as a factor under 18 U.S.C. § 3553(a)(1), which directs
district courts to consider the “history and characteristics of the defendant.” After
hearing testimony from Mr. Sisco’s sister, the district court acknowledged that Mr.
Sisco had “a father who was very abusive, not just physically abusive but emotionally
abusive.” But the court clearly explained that it was weighing those circumstances
under § 3553(a) against the need for the sentence “to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense,” as well as to deter Mr. Sisco from future criminal activity and to protect the
community from any further crimes. See 18 U.S.C. § 3553(a)(2)(A)-(C). The district
court was not required to weigh one § 3553(a) factor more heavily than the others;
the analysis is discretionary, and “disagreement with this judge's assessment of the
relevant sentencing factors does not by itself warrant reversal.” Laufle, 433 F.3d at
988. It therefore would be frivolous to argue that the district court erred by not
1
The district court did not rule on this request, but we have held that district
courts need not discuss or even explicitly rule upon a frivolous request. See United
States v. Cunningham, 429 F.3d 673, 678-79 (7th Cir. 2005) (A district court is not
required “to discuss every argument made by a litigant; arguments clearly without
merit can, and for the sake of judicial economy should, be passed over in silence.”).
No. 05-2761 Page 4
granting Mr. Sisco a below-guidelines range sentence on the basis of one particular
§ 3553 factor.
Accordingly, we GRANT the motion to withdraw and DISMISS this appeal.