United States of America v. Paul Anthony Nelson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2005
Decided June 27, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3715
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL ANTHONY NELSON,
Defendant-Appellant.
Appeal from the United States
District Court for the
Northern District of Illinois,
Eastern Division.
No. 03 CR 1154
Harry D. Leinenweber, Judge.
O R D E R
Paul Anthony Nelson pleaded guilty to unlawfully reentering the United States
in violation of 8 U.S.C. §§ 1326(a), (b)(2). The district court imposed a sentence of 57
months’ imprisonment. Nelson appealed that sentence, but his appointed counsel now
seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is
unable to find a nonfrivolous issue for appeal. Counsel’s Anders brief is facially
adequate and Nelson did not respond under Circuit Rule 51(b). Thus, we limit our
review of the record to those potential issues identified in counsel’s brief. See United
States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003); United States v. Tabb, 125 F.3d
583, 584 (7th Cir. 1997).
Counsel first considers whether Nelson could argue that the district court
improperly applied a 16-level adjustment under U.S.S.G. § 2L1.2(b)(1)(A) because of
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 3 --

No. 04-3715 Page 2
a previous New York conviction for possession of a weapon in the second degree.
Nelson argued at sentencing that the weapons charge should not qualify for the
adjustment because it was “grossly overstated” as a “crime of violence.” See
§ 2L1.2(b)(1)(A)(ii). We note that reliance on this predicate alone might suffice to
support the adjustment because criminal possession of a weapon in the second degree,
see N.Y. PENAL LAW § 265.03, includes as an element the intent to use force. Shepard
v. United States, 125 S. Ct. 1254, 1259-60 (2005); United States v. DeWayne Lewis,
405 F.3d 511, 513-14 (7th Cir. 2005). Regardless, the district court applied the
increase on a basis other than a “crime of violence”; it found that Nelson had another
conviction that would support the adjustment—a drug trafficking offense for which the
sentence imposed exceeded 13 months. See § 2L1.2(b)(1)(A)(i). In 2001 Nelson had
received a two-year sentence for unlawful possession of a controlled substance with
intent to distribute. We agree with counsel therefore that it would be frivolous to
argue that the 16-level adjustment was improperly applied.
Counsel next considers whether Nelson could challenge the district court’s
denial of his request for a downward departure on grounds that the 16-level
adjustment was excessive in light of his prior offenses. Before the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005), a discretionary refusal to
depart downward was not reviewable unless the district court mistakenly believed it
lacked authority to depart. See United States v. Abimbola-Amoo, 390 F.3d 937, 938
(7th Cir. 2004). Even if Booker now requires us to review the failure to depart for
reasonableness, the district court’s decision to remain within the correctly calculated
guidelines meets that standard, see United States v. George, 403 F.3d 470, 472-73 (7th
Cir. 2005). We therefore agree with counsel that this potential argument would be
frivolous.
Finally, counsel asks whether Nelson could argue that the district court treated
the guidelines as mandatory and therefore violated Booker. It is true that a
mandatory application of the guidelines constitutes error after Booker, and a limited
remand is required when we cannot discern what sentence the district court would
have imposed under an advisory guideline scheme, see United States v. Paladino, 401
F.3d 471, 483-84 (7th Cir. 2005). But in this case, the district court stated an
alternative sentence on the record. When asked by the government whether it had a
practice after Blakely of imposing alternative sentences, the court responded: “In the
event that the sentence is unconstitutional, I believe 57 months is in the range of
appropriate sentencing.” The district court’s alternative sentence is reviewed for
reasonableness, see United States v. Tedder, 403 F.3d 836, 844 (7th Cir. 2005), and a
range like this one that is correctly calculated under the guidelines is reasonable, see
George, 403 F.3d at 472-73. Thus, we agree with counsel that it would be frivolous to
argue that Nelson’s sentence violates Booker.

-- 2 of 3 --

No. 04-3715 Page 3
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 3 of 3 --