United States v. Horton, Larry L. , 182 F. App'x 544 ( 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UNPUBLISHED ORDER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 11, 2006
Decided May 25, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-4692
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin
v. No. 05-CR-089-S-01
LARRY L. HORTON, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Larry Horton pleaded guilty to possessing crack cocaine with the intent to
distribute, 21 U.S.C. § 841(a)(1), and the district court sentenced him to 300
months’ imprisonment. At sentencing Horton withdrew his objection to the
characterization of the cocaine as “crack,” and he did not raise any other objection to
the probation officer’s presentence report. Horton agreed with the court’s
calculation of a total offense level of 35 and a criminal history category of VI,
corresponding to a guidelines imprisonment range of 292 to 365 months. Horton
filed a notice of appeal, but his appointed counsel now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he was unable to discern a
nonfrivolous issue to pursue. Counsel’s Anders brief is facially adequate, and
Horton has responded to our invitation under Circuit Rule 51(b) to comment on
counsel’s submission. Thus we limit our review to those potential issues identified
No. 05-4692 Page 2
in counsel’s brief and Horton’s Rule 51(b) response. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
Initially counsel considered whether Horton might argue that his guilty plea
should be set aside as involuntary on the ground that the district court failed to
follow the requirements of Federal Rule of Criminal Procedure 11. Counsel
explained that the court failed to inform Horton that it could order restitution (even
though it did not) and that his statements under oath could, if false, become the
basis for a charge of perjury. But in his Rule 51(b) response, Horton stated that he
never expressed an interest in having his guilty plea set aside. Thus, we need not
explore the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671-
72 (7th Cir. 2002).
Counsel next considered whether Horton could challenge the reasonableness
of his 300-month sentence. Horton did not challenge the guidelines calculations at
sentencing and, pursuant to the Supreme Court’s holding in United States v.
Booker, 543 U.S. 220 (2005), the district court treated the sentencing guidelines as
advisory. The court considered the factors identified in 18 U.S.C. § 3553(a), and
imposed a sentence near the bottom of the guidelines range. That term is
presumptively reasonable, see, e.g., United States v. Paulus, 419 F.3d 693, 700 (7th
Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel
has been unable to construct any argument to undermine the presumption. Horton
suggested that application of career offender guideline, see U.S.S.G. § 4B1.1, created
an unwarranted disparity and thus the court should have reduced his sentence.
But his increased offense level was authorized under the guidelines, see United
States v. Gilliam, 255 F.3d 428, 435 (7th Cir. 2001), and accordingly we agree with
counsel that it would be frivolous to argue on this record that Horton’s sentence is
unreasonable. See United States v. Bryant, 420 F.3d 652, 658 (7th Cir. 2005);
Mykytiuk, 415 F.3d at 608.
Horton also suggested three other potential bases for appeal: (1) whether
counsel was ineffective for failing to pursue the argument that his sentence was
unwarranted given the sentencing distinction between crack and other forms of
cocaine; (2) whether Judge Shabaz displayed bias when he commented, “I won’t be
around the next time you do come back”; and (3) whether we should revisit United
States v. Burrell, 963 F.2d 976, 992-93 (7th Cir. 1992), and hold that convictions
obtained without an indictment cannot serve as the basis for enhancement under 21
U.S.C. §§ 841(b)(1), 851. His proposed arguments are frivolous. We have often
observed that counsel’s alleged ineffectiveness is an issue that should be left for
consideration on collateral review, particularly when, as here, counsel represented
the appellant in the district court. See, e.g., United States v. Rezin, 322 F.3d 443,
445 (7th Cir. 2003). Judge Shabaz’s comment did not demonstrate bias; it was
merely an observation that he in all probability would no longer be serving on the
No. 05-4692 Page 3
bench if Horton again found himself in jeopardy after serving his 300-month
sentence. And, Horton offered us no reason to reconsider our long-standing holding
in Burrell.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.