NONPRECEDENTIAL DISPOSITION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 March 10, 2011
Decided March 11, 2011
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3369
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 10 CR 30056
FELICIA F. JOHNSON, Michael J. Reagan,
Defendant‐Appellant. Judge.
O R D E R
Felicia Johnson and her adult son stole two greeting cards from a residential
mailbox. Johnson pleaded guilty to one count of mail theft and one count of possessing
stolen mail, see
18 U.S.C. § 1708, and the district court sentenced her to a total of 24 months’
imprisonment. (Her son pleaded guilty to the same charges and was sentenced to 12 months
in prison.) Johnson appeals, but her appointed lawyer has concluded that the appeal is
frivolous and moves to withdraw under Anders v. California,
386 U.S. 738 (1967). Johnson
has not responded to counsel’s motion. See CIR. R. 51(b). We limit our review to the
potential issues identified in counsel’s facially adequate brief. See United States v. Webster,
628 F.3d 343, 344 (7th Cir. 2010). Johnson does not want to challenge her guilty plea, so
counsel refrains from discussing potential challenges to its validity. See United States v. Knox,
287 F.3d 667, 671‐72 (7th Cir. 2002).
No. 10‐3369 Page 2
Under the terms of her plea agreement, Johnson waived all appellate challenges
except for the reasonableness of a prison sentence “in excess of the Sentencing Guidelines as
determined by the Court.” The district court adopted the probation officer’s calculations
that Johnson’s total offense level was 4 and her criminal history category was VI, based on
38 criminal history points—nearly three times the 13 points needed for placement in
category VI. Johnson, who was 42 years old at sentencing, has 26 adult convictions,
including a 2006 conviction for theft of mail, a 1988 conviction for possession of stolen mail,
three other theft convictions, and 11 forgery‐related convictions. The resulting
imprisonment range was 6 to 12 months.
The district judge concluded that category VI understates Johnson’s criminal history
and explained that, when the guidelines were mandatory, he would have addressed similar
situations by departing upward the equivalent of one offense level for every three criminal
history points above 16. See U.S.S.G. § 4A1.3(a)(4)(B); United States v. Ewing,
129 F.3d 430,
437 (7th Cir. 1997). In Johnson’s case, the judge observed, that methodology would have
meant adding seven levels (38 less 16, divided by 3) for a total of 11, yielding an effective
imprisonment range of 27 to 33 months. The judge noted that most of Johnson’s convictions
are for crimes similar to this case, and he emphasized the need to deter her from further
crime, to punish her, and to protect the public. See
18 U.S.C. § 3553(a)(2). He concluded that,
in light of Johnson’s “egregious” history, he could not go along with the parties’
recommendation of a 12‐month sentence:
As a result, under sentencing guideline 4A1.3, which the Court recognizes
is advisory and discretionary, the Court believes that there is reliable
information indicating that Ms. Johnson’s criminal history category substantially
under represents the seriousness of her criminal history and the likelihood that
she will commit other crimes and, therefore, an upward departure is warranted,
and I invoke the methodology again on a discretionary and voluntary basis
under 4A1.3(a)(4)(b), entitled Upward Departures From Category VI, and I’m
going to sentence her to a total term of incarceration of 24 months.
Appellate counsel first considers whether the district court erred in tabulating
Johnson’s criminal history points, making her sentence procedurally unreasonable. But
Johnson’s appeal waiver preserves only the right to challenge the reasonableness of a
sentence in excess of the guidelines range “determined by the Court”; that language
necessarily means she did not preserve the right to challenge the underlying calculation of
the guidelines range, which is what counsel’s proposed argument would entail.
Counsel also concludes correctly that it would be frivolous to challenge Johnson’s
sentence as substantively unreasonable. The district court considered Johnson’s arguments
No. 10‐3369 Page 3
in mitigation but felt that those arguments were outweighed by the need to punish and
deter Johnson and to protect the public. The court adequately explained its decision in the
context of § 3553(a), and so we would conclude that the sentence was reasonable. See United
States v. Ellis,
622 F.3d 784, 800 (7th Cir. 2010); United States v. Vaughn,
614 F.3d 412, 415 (7th
Cir. 2010).
We GRANT counsel’s motion to withdraw and DISMISS Johnson’s appeal.
