NONPRECEDENTIAL DISPOSITION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 August 10, 2011*
Decided August 15, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 11‐1832
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 10 CR 30213
AARON CLARK, David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
After police found a gun and 17 baggies of marijuana in his car, Aaron Clark pleaded
guilty to possessing a firearm as a convicted felon, see
18 U.S.C. § 922(g)(1), and was
sentenced to 110 months’ imprisonment. He filed a notice of appeal, but his appointed
lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v.
California,
386 U.S. 738 (1967). Clark has not responded to counsel’s submission. See Cir. R.
51(b). We confine our review to the potential issues identified in counsel’s facially adequate
brief. See United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2)(C).
No. 11‐1832 Page 2
Counsel begins by noting that Clark does not want to challenge his guilty plea and
thus correctly refrains from discussing the voluntariness of the plea or the adequacy of the
plea colloquy. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
Counsel does consider a challenge to the district court’s guidelines calculations. But
the probation officer accurately calculated a guidelines imprisonment range of 100 to 120
months. (The top of the range was capped by the 120‐month statutory maximum. See
18
U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(c)(1).) Challenging this calculation would be frivolous
because Clark stated at sentencing that he agreed with it. See United States v. Anderson,
604
F.3d 997, 1001 (7th Cir. 2010); United States v. Brodie,
507 F.3d 527, 531‐32 (7th Cir. 2007).
Counsel also correctly concludes that it would be frivolous for Clark to challenge
the substantive reasonableness of his sentence. The district court chose a sentence within the
guidelines range, and we would presume that term to be reasonable. See Rita v. United
States,
551 U.S. 338, 351 (2007); United States v. Runyan,
639 F.3d 382, 383 (7th Cir. 2011).
Furthermore, the district court properly applied the factors in
18 U.S.C. § 3553(a). Although
Clark asked for a below‐guidelines sentence because his gun was not operational, the court
refused, noting that Clark could repair the gun and that its obliterated serial number
suggested an intent to use the gun for criminal activity. The court also noted Clark’s
extensive and violent criminal record and the circumstances surrounding this arrest: Clark
tried to hide the gun when the police approached, and at the time he was on probation,
driving without a license, under the influence of marijuana, and in possession of 17 baggies
of marijuana.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
