United States of America v. Tyrone West

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2005
Decided August 25, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-4290
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRONE WEST,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 03 CR 548-1
Elaine E. Bucklo,
Judge.
O R D E R
Tyrone West pleaded guilty to two counts of crack cocaine distribution in
violation of 21 U.S.C. § 841(a)(1). The district court imposed the statutory
minimum sentence of 120 months’ imprisonment and five years’ supervised release.
West appealed that sentence, but his appointed counsel now seeks to withdraw
under Anders v. California, 386 U.S. 738 (1967), asserting that he is unable to find
a nonfrivolous issue for appeal. Counsel’s brief is facially adequate, and, although
West was notified of his right to file a response under Circuit Rule 51(b), he has not
done so. Thus, we limit our review to those potential issues identified by counsel.
See United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003).
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-4290 Page 2
Counsel first considers whether West could attack his guilty plea as
involuntary on grounds that the district court misadvised him that the supervised
release range was three years to life instead of the correct range of five years to life,
see Federal Rule of Criminal Procedure 11(b)(1)(I) and (H), a misstatement we
would review for plain error because West did not challenge his plea before the
district court. United States v. Gibson, 356 F.3d 761, 765-66 (7th Cir. 2004). But
as counsel points out, the misstatement was harmless because the combined total of
imprisonment and supervised release—15 years—is less than the statutory
maximum term of life imprisonment, see 21 U.S.C. § 841(b)(1)(A), that the district
court informed West about at his plea hearing. See United States v. Schuh, 289
F.3d 968, 975 (7th Cir. 2002). In any event, counsel asserts that it is “unclear” if
West wants to challenge his plea. Generally counsel should not raise a Rule 11
guilty plea challenge on appeal, or even consider the question in an Anders brief,
unless the defendant “really wants to withdraw the guilty plea.” United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Next counsel considers whether West could challenge his sentence on the
basis that the district court “misapplied or unreasonably departed from the
guidelines.” But counsel is correct that any potential argument along these lines
would be frivolous, because not only were the guidelines made advisory after United
States v. Booker, 125 S. Ct. 738 (2005), but the guidelines did not affect West’s
sentence—he received the statutory minimum of 120 months’ imprisonment, see 21
U.S.C. § 841(b)(1)(A). We agree with counsel that an argument under Booker would
be frivolous because there is no possibility that West would be resentenced to a
term of imprisonment below the statutory minimum. See United States v. Duncan,
413 F.3d 680, 683 (7th Cir. 2005) (“Put simply, Booker and Blakely do not affect the
imposition of statutory minimum sentences.”).
We thus GRANT counsel’s motion to withdraw and DISMISS the appeal.

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