United States v. Russo, Joseph N. , 210 F. App'x 525 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006
Decided December 18, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2117
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 05 CR 141
JOSEPH N. RUSSO,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Unbeknown to Joseph Russo, his marijuana buyer was a police informant.
Police officers from Hurley, Wisconsin, had watched Russo and the informant
engage in two prior drug sales; immediately after the third sale, officers arrested
him. The officers then searched his home and found a rifle and two shotguns. He
was charged with possessing firearms as a felon. See 18 U.S.C. § 922(g)(1). Before
trial, Russo moved to suppress the guns and incriminating statements he made on
the night of his arrest. He claimed that the police coerced him into giving consent
to search his house, and that he was questioned without Miranda warnings and
repeated requests for a lawyer. A magistrate judge conducted an evidentiary
hearing on Russo’s motion and recommended that the district court credit the
testimony of the arresting officers, who said Russo gave written consents to the
No. 06-2117 Page 2
search and to be questioned without counsel. Russo failed to object, and the district
court adopted the magistrate judge’s recommendation. Russo was then tried by a
jury, found guilty, and sentenced to 110 months’ imprisonment and three years’
supervised release.
Russo filed a notice of appeal, but his appointed lawyer has moved to
withdraw because she cannot discern a nonfrivolous argument for appeal. See
Anders v. California, 386 U.S. 738 (1967). Counsel’s supporting brief is facially
adequate, and Russo has not responded to counsel’s motion, see Cir. R. 51(b). Our
review of the record is limited to the potential issues counsel has identified. See
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel first examines whether Russo could challenge the district court’s
ruling on his motion to suppress. But Russo never objected to the magistrate
judge’s report and recommendation, which the district court adopted. Russo thus
waived any argument about the district court’s ruling, and so we agree with counsel
that it would be frivolous to raise a suppression argument on appeal. See United
States v. Hall, 462 F.3d 684, 688-89 (7th Cir. 2006); United States v. Hernandez-
Rivas, 348 F.3d 595, 598 (7th Cir. 2003).
Counsel next questions whether Russo could challenge the jury’s verdict, but
rightly determines that he could not. We will overturn a jury verdict only when the
record contains no evidence from which a rational jury could have found guilt
beyond a reasonable doubt. United States v. Macari, 453 F.3d 926, 936 (7th Cir.
2006); United States v. Caldwell, 423 F.3d 754, 759 (7th Cir. 2005). The only issue
at trial was whether Russo possessed the firearms, and Russo told the police early
on that he had personally placed the weapons in his spare bedroom. Therefore,
sufficient evidence supported the jury’s conviction and it will not be overturned.
Finally, counsel considers whether Russo might argue that his prison
sentence is unreasonable. Here the district court correctly set Russo’s base offense
level at 24, which accounts for one previous conviction for a controlled substance
offense and another for a crime of violence. See U.S.S.G. § 2K2.1(a)(2). The court
added two levels because Russo possessed three firearms, see U.S.S.G.
§ 2K2.1(b)(1)(A), as well as two more levels because Russo obstructed justice during
the suppression hearing by lying in his own affidavit and suborning perjury from a
defense witness, see id. § 3C1.1. Russo’s guidelines imprisonment range was thus
properly calculated to be 110 to 137 months, though the upper end would have been
capped at 120 months, the statutory maximum. See 18 U.S.C. § 924(a)(2). Because
Russo’s prison sentence is within the guidelines range, it is presumptively
reasonable, United States v. Mykytuik, 415 F.3 606, 608 (7th Cir. 2005), and counsel
can identify no error in the district court's analysis of the relevant factors under 18
No. 06-2117 Page 3
U.S.C. § 3553(a). But whether or not we applied the presumption here, we would
conclude, as does counsel, that it would be frivolous for Russo to argue that his
prison term is unreasonable. See United States v. Rita, No. 05-4674, 2006 WL
1144508 (4th Cir. 2006), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No.
06-5754) (granting writ of certiorari to decide whether it is consistent with Booker
to accord a presumption of reasonableness to a sentence within the guidelines
range). We recently noted that sentencing courts must consider serious arguments
for imposing a sentence below the guidelines range, United States v. Gama-
Gonzalez, No. 06-1965, 2006 WL 3490843, at *2 (7th Cir. Dec. 5, 2006), but Russo
did not identify any § 3553(a) factor that might have warranted a sentence below
the range. Even ignoring the presumption, then, we would agree with counsel that
a reasonableness argument would be frivolous. See United States v. Filipiak, 466
F.3d 582, 584 (7th Cir. 2006).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.