United States of America v. Timothy Day, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2009
Decided November 6, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐3656
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TIMOTHY DAY, JR.,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 07 CR 261‐1
John F. Grady,
Judge.
O R D E R
Timothy Day, Jr., robbed three banks in less than two weeks. During the robberies,
Day posted at least one lookout outside, warned bank employees that he had a gun, and
told the tellers not to give him any “funny money.” A week after the third robbery, Day was
arrested outside another bank he and his cohorts were casing. He pleaded guilty without a
plea agreement to three counts of bank robbery, 18 U.S.C. § 2113(a), and was sentenced to 51
months’ imprisonment.
Day filed a notice of appeal, but his appointed lawyers have concluded that the case
is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We
invited Day to respond to counsel’s motion, though he did not. See CIR. R. 51(b). Our review
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3656 Page 2
is limited to the potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel initially advise that Day does not want his guilty pleas vacated, and so the
lawyers properly omit any discussion of the adequacy of the plea colloquy or the
voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel have considered arguing that Day’s prison sentence is unreasonable. The
district court set Day’s total offense level at 24, which includes a two‐level increase for
robbing a financial institution, U.S.S.G. § 2B3.1(b)(1), a two‐level increase for making a
“threat of death” during one of the robberies, id. § 2B3.1(b)(2)F), a three‐level increase for
multiple counts, id. § 3D1.4, and a three‐level reduction for acceptance of responsibility, id. §
3E1.1(a). Day’s offense level, combined with his Category I criminal history, produced a
guidelines imprisonment range of 51 to 63 months. The district court evaluated the factors
in 18 U.S.C. § 3553(a) and concluded that a sentence at the low end of that range was both
appropriate and a “real bargain” for Day. The court was not persuaded that Day’s
disadvantaged childhood, his cooperation with authorities after his arrest, or his
expressions of remorse merited a lower prison term given the number of robberies and his
use of a gun each time. The sentence imposed is within the guidelines range and thus
presumptively reasonable, United States v. Panaigua‐Verdugo, 537 F.3d 722, 727 (7th Cir.
2008), and Day’s lawyers are unable to articulate any basis for disregarding that
presumption. It does not matter, as counsel recognize, that Day received a stiffer prison
term than one of his lookouts; Day was the one who entered the banks and threatened their
employees with a gun, and, more importantly, a difference when measured against the
sentence of a codefendant for arguing that a prison term is unreasonable is not a valid basis
for arguing that a prison term is unreasonable. See, e.g., United States v. Omole, 523 F.3d 691,
700 (7th Cir. 2008); United States v. Vaughn, 433 F.3d 917, 926 n.14 (7th Cir. 2006); United
States v. White, 406 F.3d 827, 837 (7th Cir. 2005). Accordingly, we agree with counsel that
challenging the reasonableness of Day’s prison term would be frivolous.
We also agree with counsel that Day cannot argue that the district court should have
set a schedule for his payment of restitution while in prison. A sentencing court is not
required to, and generally should not, set a payment schedule covering the period of
incarceration. See United States v. Hatten‐Lubick, 525 F.3d 575, 581‐82 (7th Cir. 2008); United
States v. Sawyer, 521 F.3d 792, 795 (7th Cir. 2008).
Finally, counsel consider whether Day could challenge the district court’s failure to
specify the number of drug tests he must undergo while on supervised release. The district
court should have set the number of required drug tests, 18 U.S.C. § 3583(d); United States v.
Bonanno, 146 F.3d 502, 511 (7th Cir. 1998), but Day said nothing about the omission at

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No. 08‐3656 Page 3
sentencing, and the error is not one that we would correct on plain‐error review. See United
States v. Harvey, 484 F.3d 453, 458‐59 (7th Cir. 2007); United States v. Tejeda, 476 F.3d 471, 475
(7th Cir. 2007). Thus, we agree with counsel that it would be frivolous to raise this point on
appeal.
Accordingly, we G RANT counsel’s motion to withdraw and D ISMISS the appeal.

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