United States v. Krueger, Amy J. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 17, 2007
Decided April 18, 2007
Amended April 27, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-3406
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 06-CR-120-S-01
AMY J. KRUEGER,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Amy J. Krueger pleaded guilty to misuse of a social security number and was
sentenced to 18 months’ imprisonment followed by three years of supervised
release. Krueger filed a notice of appeal, but her appointed counsel now seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967), because she is unable to
discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially
adequate, and Krueger has responded to our invitation under Circuit Rule 51(b) to
comment on counsel’s submission. We therefore limit our review to the potential
issues identified in counsel’s brief and in Krueger’s response. See United States v.
Schuh, 289 F.3d 968, 974 (7th Cir. 2002).
No. 06-3406 Page 2
Krueger pleaded guilty to using a co-worker’s social security number to open
a credit card account and making two purchases with the card for $64, see 42 U.S.C.
§ 408(a)(7)(B). Her presentence investigation report placed her base offense level at
12, see U.S.S.G. §§ 2B1.1(a)(2), 2B1.1(b)(10)(C)(i), and recommended a two-level
reduction for acceptance of responsibility, see § 3E1.1(a). A total offense level of 10,
combined with criminal history category IV, yielded a recommended sentencing
range of 15 to 21 months’ imprisonment. Krueger did not object to any information
set out in the PSR, but she did request that the court sentence her to probation
instead of prison, primarily because of her family responsibilities and a bout with
ovarian cancer that was in remission.
At sentencing, the court noted that Krueger had a “serious” criminal history,
including prior thefts dating back to 1992, when she was 20 years old. The court
observed that previous lenient sentences had not deterred her from further crime,
and therefore not “even a most merciful judge” would find probation to be an
adequate sentence. The court emphasized that the crimes “continue[],” the “beat
goes on,” and “there has been no deterrence.” What was exceptional in the eyes of
the court was not Krueger’s family or health issues, but her numerous discharges
from past jobs for inappropriate and sometimes criminal behavior.
Counsel first considers whether Krueger could argue that the factual basis
offered in support of her guilty plea was inadequate, see Fed. R. Crim. P. 11(b)(3).
Counsel suggests, and Krueger in her Rule 51(b) response now maintains, that she
did not use her co-worker’s social security number to open a credit card account but
instead received a credit card with his name in the mail, stole it, and began using it.
Because she did not apply for the credit card, the argument continues, she did not
commit the particular offense she pleaded guilty to.
This issue is properly considered because, in accordance with United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002), counsel has verified that Krueger now
wishes to withdraw her plea. Any such challenge would be reviewed for plain error
because Krueger did not move to withdraw her plea in the district court. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,
467 F.3d 630, 632 (7th Cir. 2006). We agree that such a challenge would be
frivolous. The court determined that there was a factual basis for the plea; in other
words, the court found that the “facts support the charge.” United States v.
Christian, 342 F.3d 744, 748 (7th Cir. 2003). At the plea colloquy, Krueger did not
dispute any of the evidence that the government proposed to present at a trial,
including an admission by Krueger to a police officer that she applied for the credit
card. Krueger agreed that she, with the intent to deceive, misrepresented that a
certain social security number belonged to her, and that she “made the application”
for and obtained a credit card account at a bank in Wisconsin using her co-worker’s
social security number. These representations are presumed truthful, see United
No. 06-3406 Page 3
States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004), and she has not rebutted the
presumption.
Krueger also suggests that she pleaded guilty at trial counsel’s urging to this
crime that she did not commit, and she therefore would like to raise a claim for
ineffective assistance of counsel. Trial counsel also fell short, in Krueger’s eyes,
because he failed to make unspecified objections to her PSR, did not press for a
mental health examination, consistently told her she would not be sentenced to
prison, and did not explain the sentencing guidelines to her or seem to understand
how her criminal history score might affect her sentence. However, any claim for
ineffective assistance of counsel would be better suited for collateral review where
the record can be further developed. See Massaro v. United States, 538 U.S. 500,
504 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Both counsel and Krueger also consider whether Krueger could argue that
her sentence was unreasonable. However, because the term falls within the
properly calculated guidelines range, it is presumed reasonable, see United States v.
Gama-Gonzalez, 469 F.3d 1109, 1111 (7th Cir. 2006); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005), and counsel says she cannot find any basis to
rebut this presumption. Although the Supreme Court recently granted a writ of
certiorari to consider whether affording a presumption of reasonableness to a
sentence within the guidelines range is consistent with United States v. Booker, 543
U.S. 220 (2005), see United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir.
May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006), even without the
presumption any challenge to the 18-month term imposed in this case would be
frivolous. The district court considered the relevant factors under 18 U.S.C. §
3553(a), such as the need for adequate deterrence, as well as Krueger’s own history
and characteristics, including her troubled work record, her criminal past, and her
family life. The district court need not discuss each of the § 3553(a) factors in
checklist fashion; it is enough to calculate the range accurately and explain why a
particular defendant deserves his or her sentence, as the court did here. See United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). We thus agree with counsel that
it would be frivolous for Krueger to argue that her sentence is unreasonable.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.