United States of America v. Timothy A. Pelasky

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2005
Decided April 27, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4107
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY A. PELASKY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division
No. 1:04CR00110-001
John Daniel Tinder,
Judge.
O R D E R
Timothy Pelasky pleaded guilty to one count of possessing five or more false
identification documents, see 18 U.S.C. § 1028(a)(3), and one count of possessing a
document-making implement, see id. § 1028(a)(5), and was sentenced to two
concurrent terms of 27 months’ imprisonment, restitution of $14,746, and three
years’ supervised release. Pelasky filed a notice of appeal, but his appointed
counsel—who contends that there are no nonfrivolous issues to argue on
appeal—now seeks permission to withdraw. See Anders v. California, 386 U.S. 738
(1967). Pelasky received notice that he could respond to his counsel’s Anders brief,
see Cir. R. 51(b), but he did not do so. Because counsel’s brief is facially adequate,
we review only the potential issues that counsel identifies in his brief. See United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). We agree with counsel that
those potential issues would be frivolous, and so we grant the motion to withdraw
and dismiss the appeal.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-4107 Page 2
In April 2004, Pelasky fled the scene of an auto accident in Marion County,
Indiana, and then led police on an 11-mile high-speed auto chase. When arresting
officers finally caught Pelasky, they found in his car more than a dozen fake
identification cards, a computer with other people’s personal bank information,
driver’s license templates for hundreds of individuals, and the means to counterfeit
driver’s licenses for several different states. Later investigation showed that
Pelasky had written almost $15,000 in fraudulent checks.
Since Pelasky pleaded guilty while United States v. Booker, 125 S. Ct. 738
(2005), was pending, the district court declared that it would impose Pelasky’s
sentence using the factors in 18 U.S.C. § 3553(a) for guidance and treating the
guidelines as merely advisory. At sentencing the judge grouped both counts
(possession of the false identification documents and possession of the document-
making implement) and started with a base offense level of six under U.S.S.G.
§ 2B1.1(a)(2). Then he added four levels because the victims’ losses were over
$10,000, see id. § 2B1.1(b)(1)(C), two levels because there were more than ten
victims, see id. § 2B1.1(b)(2)(A), two more for possessing or using “device-making
equipment” or possessing “5 or more means of identification that unlawfully were
produced from, or obtained by the use of, another means of identification,” id.
§ 2B1.1(b)(10) (formerly § 2B1.1(b)(9)), and a final two for Pelasky’s reckless flight,
see id. § 3C1.2. Next, the judge subtracted three levels for acceptance of
responsibility, see id. § 3E1.1, to reach an adjusted offense level of 13. Additionally,
the judge departed upward because he concluded that Pelasky’s four criminal
history points and resulting category III history substantially understated his
actual criminal history and the likelihood that he would commit further crimes.
The judge noted that Pelasky had pending state charges in several Ohio cases
involving drunk driving and fleeing, but Pelasky ducked trial in all those cases.
(The charges of flight rose to the level of a felony in at least one instance.) The
judge reasoned that the guidelines did not adequately address Pelasky’s evasion of
responsibility for these crimes and declared that Pelasky’s behavior demonstrated a
strong likelihood of recidivism. Therefore, the judge effectively applied a criminal
history category of IV, producing a range of 24 to 30 months. The judge opted for
the high end but cut the term to 27 months to account for three months Pelasky had
already served on an Indiana sentence for resisting arrest and recklessness arising
from the high-speed chase in Marion County.
Counsel informs us that Pelasky does not want to withdraw his guilty pleas,
so, appropriately, the lawyer has not tried to identify potential issues relating to the
plea colloquy or the voluntariness of those pleas. See United States v. Knox, 287
F.3d 667, 671–72 (7th Cir. 2002). Instead, the potential issues counsel identifies
pertain to sentencing only.

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No. 04-4107 Page 3
Counsel first asserts that it would be frivolous for Pelasky to argue that the
several guideline adjustments had to be alleged in the indictment. Although the
Supreme Court in Booker held that the sentencing guidelines violated the Sixth
Amendment when applied as a mandatory regime, it remedied the problem by
rendering the guidelines advisory. See Booker, 125 S. Ct. at 764–66. In so holding,
the Court expressly rejected a remedy that would have required that all facts
necessary for sentencing be alleged in the indictment. See id. at 761–62.
Therefore, we agree with counsel’s assessment.
We also agree that it would be pointless for Pelasky to pursue the “double-
counting” objection he pressed at sentencing. Double-counting occurs only if the
same conduct is used to justify more than one adjustment of the defendant’s
sentence. See United States v. White, 222 F.3d 363, 375–76 (7th Cir. 2000); United
States v. Manchillas, 183 F.3d 682, 710 (7th Cir. 1999). That was not the case here,
because the conduct at issue was used to impose only one upward adjustment.
Moreover, the base offense level with which the judge started does not already
account for the conduct targeted by that adjustment, because that base offense level
applies to variety of general property crimes and was not tailored to Pelasky’s
crimes. See U.S.S.G. § 2B1.1 intro. cmt. Thus, Pelasky’s situation is unlike cases
in which the sentencing guidelines expressly prohibit the application of specific
adjustments where they are an essential element of the offense of conviction. Cf.
United States v. Sonsalla, 241 F.3d 904, 908–09 (7th Cir. 2001) (prohibiting the
application of § 3B1.3 for abuse of trust when abuse of trust is an element of the
offense). Regardless, even if we assume Pelasky could argue that the adjustment
would not apply if it duplicated elements of the offenses of conviction, the elements
of the statutory offense and the adjustment differ. Whereas Pelasky pleaded guilty
to possessing five or more “identification documents,” see 18 U.S.C. § 1028(a)(3), the
adjustment addresses possession of five or more “means of identification”—which
does not refer to documents but rather to personal identifiers like social security
numbers, see id. § 1028(d)(7); furthermore, unlike § 1028(a)(3), the adjustment
targets conduct like identity theft for the purpose of creating new means of
identification. See United States v. Melendrez, 389 F.3d 829, 830 (9th Cir. 2004);
United States v. Williams, 355 F.3d 893, 900 (6th Cir. 2003).
Counsel is also correct that Pelasky has no argument that the district court
abused its discretion by upwardly departing to account for the pending Ohio
charges for drunk driving and felony fleeing. Indeed, the sentencing guidelines
authorize a departure where “the defendant was pending trial or sentencing on
another charge at the time of the instant offense.” U.S.S.G. § 4A1.3(a)(2)(D). Here,
the court—based on extensive descriptions of the pending Ohio charges in the
presentence report—found that it was “very likely” that Pelasky would have been
incarcerated for an extensive period on at least some of those charges, especially
considering that he evaded trial. The court thus properly applied the guidelines,

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No. 04-4107 Page 4
and its explanation provides a sufficient basis for review of its decision. See United
States v. Peterson, 256 F.3d 612, 614–15 (7th Cir. 2001); United States v. De
Angelo, 167 F.3d 1167, 1169–70 (7th Cir. 1999).
Finally, we agree with counsel that it would be frivolous to ask for a limited
remand under United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir. 2005). The
district court anticipated the outcome of Booker, and thus did not err. See Booker,
125 S. Ct. at 764–66; United States v. George, No. 04-3099, 403 F.3d 470, 2005 WL
746552, at *2 (7th Cir. Apr. 4, 2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS Pelasky’s appeal.

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