United States v. Avery Evans , 495 F. App'x 722 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 November 5, 2012
Decided November 5, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-1694
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 11 CR 50053-3
AVERY EVANS,
Defendant-Appellant. Frederick J. Kapala,
Judge.
ORDER
Avery Evans participated in a scheme to create counterfeit checks using routing and
account numbers stolen from the Federal Reserve Bank of Chicago. Evans’ role was to use
the checks to purchase merchandise from retailers (the goods were later sold for cash), and
also to recruit others to do the same. He and his confederates fraudulently negotiated more
than 900 checks with an aggregate face value exceeding one million dollars. After his arrest
Evans pleaded guilty to wire fraud (he had knowingly caused the retailers to transmit
fraudulent information to check-processing companies over telephone lines). See 18 U.S.C.
§ 1343. After calculating the guidelines range, the district court sentenced him to 78
months’ imprisonment, a sentence in the middle of his guidelines range.
No. 12-1694 Page 2
Evans filed a notice of appeal, but his appointed lawyer believes that the appeal is
frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Evans has not
responded to counsel’s submission, see CIR. R. 51(b), and we limit our review to the
potential issues counsel identified in his facially adequate brief, United States v. Schuh, 289
F.3d 968, 973–74 (7th Cir. 2002). Evans does not want his guilty plea set aside, so his counsel
properly forgoes discussion of the voluntariness of the plea or the district court’s
compliance with Federal Rule of Criminal Procedure 11. See United States v. Konczak, 683
F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel first considers whether Evans could argue that his sentence was
procedurally flawed and properly concludes that such an argument would be frivolous.
The district court correctly calculated the guidelines range (70 to 87 months’ imprisonment,
based on a total offense level of 25 and a criminal-history category of III), did not treat the
guidelines as mandatory, and did not rely on clearly erroneous facts. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Turner, 569 F.3d 637, 640 (7th Cir. 2009). Thus
we see no basis for a procedural challenge.
Counsel’s brief also considers whether Evans could challenge his 78-month sentence
as unreasonable. Counsel has not identified any ground to rebut the presumption that a
sentence within the guidelines range is reasonable, see Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Williams, 436 F.3d 767, 768 (7th Cir. 2006), nor can we. In determining
Evans’ sentence, the district court appropriately considered the factors in 18 U.S.C.
§ 3553(a), placing particular weight on the need for a sentence that would deter Evans from
recidivating (Evans had four prior convictions for forgery and joined the counterfeit-check
scheme almost immediately after finishing a prison sentence for bank fraud). Because the
court adequately explained its sentencing decision, we agree with counsel that any
challenge to the reasonableness of Evans’ sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.