United States v. Grant, Marvin , 181 F. App'x 591 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2006
Decided May 26, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2658
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 CR 884
MARVIN GRANT,
Defendant-Appellant. Ronald A. Guzmán,
Judge.
ORDER
Marvin Grant pleaded guilty to possessing a credit card embosser with the
intent to defraud, 18 U.S.C. § 1029(a)(4). He admitted to obliterating the names
and account numbers from existing credit cards with a clothes iron, imprinting the
cards with different information, and using the phony cards to make purchases.
The district court sentenced Grant to 86 months’ imprisonment and three years’
supervised release. He was also ordered to pay $87,730.89 in restitution and a $100
special assessment. Grant filed a notice of appeal, but his appointed lawyer has
moved to withdraw because he cannot discern a nonfrivolous argument for appeal.
See Anders v. California, 386 U.S. 738 (1967). Grant has filed a response. See
No. 05-2658 Page 2
Circuit Rule 51(b). Counsel’s brief is facially adequate, and so we review only the
potential arguments that he and Grant have identified. See United States v. Tabb,
125 F.3d 583, 584 (7th Cir. 1997).
Counsel first questions whether he might challenge Grant’s guilty plea, an
issue that is properly considered because counsel reports that Grant has expressed
an interest in withdrawing his plea. See United States v. Knox, 287 F.3d 667, 671-
72 (7th Cir. 2002). We would review Grant’s claim only for plain error because he
did not move to withdraw his guilty plea in the district court. See United States v.
Vonn, 535 U.S. 55, 74 (2002). Counsel states in his brief that Grant questions the
soundness of his plea “because he believes that his indictment was defective,” and
in his response Grant elaborates that the indictment failed to allege two “elements”
of the offense that resulted in a higher guideline range at sentencing: the amount of
the loss and a prior conviction. Notwithstanding the questionable merit of Grant’s
assertion, counsel correctly points out that a valid guilty plea waives all
nonjurisdictional errors occurring prior to the plea. E.g., United States v. Elizalde-
Adame, 262 F.3d 637, 639 (7th Cir. 2001). The only question, then, is whether
Grant’s plea was knowing and voluntary. Grant does not suggest in his response
that it was not; moreover, we agree with counsel that any argument about the
adequacy of the plea colloquy would be frivolous. See Fed. R. Civ. P. 11(b).
Counsel next considers and dismisses several possible arguments concerning
Grant’s sentence, which the district court imposed after the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). First, counsel
appropriately rejects a challenge to the calculation of the advisory guidelines range,
pointing out that the adjustments to Grant’s offense level were based largely on
factual admissions in his plea agreement and were otherwise properly determined
by the district court. See United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006).
And counsel identifies nothing that might rebut the presumption of reasonableness
given to a sentence within the properly calculated guideline range. See United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Counsel also discerns no
basis on which to challenge the restitution order because Grant stipulated in his
plea agreement to the amount owed. Grant nevertheless contends that the district
court improperly imposed restitution for losses stemming from conduct charged in
counts of the indictment other than the one to which he pleaded guilty. But counsel
is correct; we have noted that “[r]estitution is limited to the loss caused by the
crimes of which the defendant stands convicted, unless he agrees to pay more.” See
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) (emphasis added). And in
his plea agreement—which covers only a single count of the indictment—Grant
acknowledged owing a total of “at least approximately $87,730.89” in restitution.
Finally, Grant alone argues that the remedial opinion in Booker retroactively
increased his sentence in violation of the ex post facto clause of the United States
No. 05-2658 Page 3
Constitution. We rejected the same argument in United States v. Jamison, 416
F.3d 538, 539 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.