United States v. Carruthers, Bennie L , 228 F. App'x 609 ( 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NONPRECEDENTIAL DISPOSITION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 18, 2007
Decided April 18, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2074
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plaintiff-Appellee, Central District of Illinois
v. No. 05-40102-001
BENNIE L. CARRUTHERS, JR., Joe Billy McDade,
Defendant-Appellant. Judge.
ORDER
Bennie Carruthers pleaded guilty to possession of a firearm by a felon,
18 U.S.C. § 922(g)(1), and was sentenced to 120 months’ imprisonment. He filed a
notice of appeal, but his appointed counsel now seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous issue
to pursue. Counsel’s brief is facially adequate, and Carruthers has not responded to
our invitation under Circuit Rule 51(b) to comment on counsel’s submission, so we
review only the potential issues that counsel has identified. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Carruthers was driving his girlfriend, Vanya Howard, in her car toward Rock
Island, Illinois, when Randy Crawford—who had previously dated Howard—pulled
No. 06-2074 Page 2
up beside them. After Crawford yelled some rude remarks, Carruthers chased him
into a residential neighborhood and fired a handgun twice at his car. No one was
hurt, but one bullet struck a house. A witness called police and provided a
description of Howard’s car. A search of the car and her residence turned up a
revolver and ammunition. The case was referred to federal authorities, and
Carruthers entered a blind guilty plea to the § 922(g)(1) charge.
The probation officer who prepared the presentence investigation report
calculated a total offense level of 25 and a criminal history category of VI, yielding a
guidelines imprisonment range of 110 to 137 months. The statutory maximum is
ten years, however, so that became the upper end of the range. See 18 U.S.C.
§ 924(a)(2); U.S.S.G. § 5G1.1(c)(1). Carruthers did not file any objections to the
presentence report. The sentencing court, after noting that Carruthers posed a
danger to the public and that others must be deterred from committing similar
crimes, selected the high end of the guidelines range.
The one potential issue that counsel identifies is whether Carruthers might
argue that his prison sentence is unreasonable because the sentencing court did not
explicitly mention his history, characteristics, and potential for rehabilitation. See
18 U.S.C. § 3553(a)(1), (a)(2)(D). Counsel recognizes that Carruthers’s sentence is
presumed reasonable because it falls within the properly calculated guidelines
range. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Although
the Supreme Court has 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, 177 Fed. Appx. 357 (4th Cir. 2006), cert. granted, 75 U.S.L.W. 3246 (U.S.
Nov. 3, 2006) (No. 06-5754), the resolution of that question would not affect our
conclusion that any challenge to Carruthers’s sentence would be frivolous.
A sentencing court need not recite the § 3553(a) factors in a “‘checklist
fashion.’” United States v. Farris, 448 F.3d 965, 969 (7th Cir. 2006) (quoting United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). “It is enough that the record
confirms that the judge has given meaningful consideration to the section 3553(a)
factors.” United States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). The
sentencing court here meaningfully considered the § 3553(a) factors before deciding
that a sentence at the high end of the guidelines range was appropriate. For
instance, the court noted the need to protect the public from Carruthers’s
indiscriminate gun use. See 18 U.S.C. § 3553(a)(2)(C). The court also emphasized
that it was sentencing Carruthers to the maximum allowable sentence to send a
message “to people who do or may think about using guns.” See id. § 3553(a)(2)(B).
The court acknowledged that Carruthers was remorseful, but noted that in
fashioning an appropriate sentence it “must look at the danger to the community
and to deter other people from doing what you’ve done.” Thus, as counsel concludes,
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it would be frivolous for Carruthers to argue that the sentence is unreasonable or
that the court failed to adequately explain its reasons for imposing the sentence it
did.
Therefore, the motion to withdraw is GRANTED, and the appeal is
DISMISSED.