United States v. Freeman, Gary E. , 150 F. App'x 554 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2238
UNITED STATES OF AMERICA, Appeal from the United States
District
Plaintiff-Appellee, Court for the Central District of Illinois
v.
No. 04-30082-001
*
GARY E. FREEMAN, SR.,
Defendant-Appellant. Richard Mills,
Judge.
ORDER
Gary Freeman pleaded guilty to two counts of distributing crack and to
possessing a firearm after conviction, and was sentenced to a 235-month term of
imprisonment. The plea agreement includes a waiver of Freeman’s right to appeal
his sentence with limited exceptions. Freeman’s counsel now seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), because he cannot discern a
*
The defendant’s name is identified in various documents in the record as
both Gary E. Freeman, Sr. and Gary E. Freemon, Sr. Because he and his counsel
use the former spelling, we do so as well.
No. 05-2238 Page 2
nonfrivolous basis for appeal. Freeman has not responded to our notice under
Circuit Rule 51(b). We therefore limit our review to the potential issues raised by
counsel. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel identifies five potential issues for appeal. First, counsel considers
arguing that the district court failed to comply with Federal Rule 11 of Criminal
Procedure. Because counsel informs us that Freeman does not wish to withdraw his
guilty plea, counsel was not required to explore the adequacy of the Rule 11 colloquy.
See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel also considers whether to challenge any aspect of his sentence not
specifically reserved in the appeal waiver. However, the appeal waiver stands or
falls with the plea agreement that Freeman does not wish to challenge, and counsel
therefore properly concludes that any arguments not reserved in the appeal waiver
would be frivolous. See, e.g., United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.
2002).
Counsel next contemplates arguing that the 235-month sentence was
unreasonable in light of United States v. Booker, 125 S. Ct. 738, 765 (2005), because:
(1) the disparity in sentencing of cocaine and crack offenses is grossly
disproportional, or (2) Freeman’s serious medical condition may shorten his life
expectancy. This argument, however, is foreclosed by the appeal waiver. It is true
that in his appeal waiver Freeman expressly reserved the right to appeal any ruling
that increased his sentence where the standard of proof was less than beyond a
reasonable doubt. But no such ruling was made. The judge simply rejected counsel’s
arguments that either the disparity between crack and cocaine or Freeman’s medical
condition warranted a sentence below the guideline range. Even if the appeal
waiver allowed these arguments, Freeman’s sentence was within the guideline
range, and any sentence within the guideline range is presumptively reasonable.
See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Counsel next contemplates challenging the district court’s acceptance of the
parties’ stipulation that the drug weight for which Freeman would be accountable
“should be found to be the equivalent of slightly less than 3,000 kilograms.” As
counsel correctly observes, facts stipulated to as part of a plea agreement are
conclusively admitted. See United States v. Paulus, 419 F.3d 693, 699 (7th Cir.
2005).
Finally, counsel considers arguing that the felon-in-possession statute under
which Freeman was convicted, 18 U.S.C. § 922(g), is unconstitutional. He asks
whether § 922(g) exceeds Congress’s power under the Commerce Clause because it
criminalizes more than mere economic activity. Freeman did not challenge the
constitutionality of this statute in the district court, however, so we review it only for
plain error. United States v. Williams, 410 F.3d 397, 400 (7th Cir. 2005). We have
No. 05-2238 Page 3
repeatedly rejected constitutional challenges to § 922(g), and Freeman has not
offered any reason why we would depart from our previous holdings. See, e.g., id.
Accordingly, any argument that it was plain error to prosecute him under § 922(g)
would be frivolous.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.