United States of America v. Yaphet K. Jamal

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 13, 2008
Decided November 13, 2008
Before
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3643
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
YAPHET K. JAMAL,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06‐CR‐949‐1
William J. Hibbler,
Judge.
O R D E R
Yaphet Jamal pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), and the district
court sentenced him to 96 months’ imprisonment and 3 years’ supervised release. Jamal
filed a notice of appeal, but his appointed counsel moves to withdraw because he is unable
to discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Jamal opposes counsel’s motion. See CIR . R. 51(b). We limit our review to the potential
bases identified by counsel and Jamal. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th
Cir. 2002).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3643 Page 2
Because Jamal does not want his guilty plea set aside, counsel appropriately omits
any discussion about the adequacy of Jamal’s plea colloquy or the voluntariness of the plea.
See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel first questions whether Jamal could argue that his right of allocution, see
F ED. R. CRIM . P. 32(i)(4)(A)(ii), was violated because he was not given a chance to address
the sentencing court until after the judge had announced his inclination to impose a term of
imprisonment above the guidelines range. Although allocution must precede the
imposition of sentence, no rigid procedure must be followed. United States v. Williams, 258
F.3d 669, 674 (7th Cir. 2001). And while it is error to announce a definitive sentence before
allocution, United States v. Griffin, 521 F.3d 727, 731 (7th Cir. 2008); United States v. Luepke,
495 F.3d 443, 448 (7th Cir. 2007), the judge here simply advised Jamal that he was
contemplating a prison term above the range since Jamal had convictions for a murder, two
bank robberies, and a drug crime that were not counted in his criminal history score. Both
sides made arguments before Jamal spoke directly to the court. The judge then imposed
the 96‐month sentence. The judge did not announce a specific sentence before Jamal was
given an opportunity to speak, and thus it would be frivolous for Jamal to argue that his
right to allocute was violated. See United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997)
(holding that right not violated when court indicates its tentative conclusions before
allocution).
Both counsel and Jamal also contemplate arguing that a 96‐month term of
imprisonment is too long, especially when measured against the guidelines range of 46 to
57 months. We evaluate a sentence for reasonableness. Gall v. United States, 128 S. Ct. 586,
597 (2007). In fashioning a sentence, a district judge must properly calculate the guidelines
range and then apply the factors set out in 18 U.S.C. § 3553(a). United States v. Bush, 523
F.3d 727, 729 (7th Cir. 2008). The guidelines are advisory, United States v. Booker, 543 U.S.
220, 245 (2005), but the farther a sentence strays from the guidelines range the more
compelling the explanation for it must be. United States v. Ngatia, 477 F.3d 496, 501 (7th Cir.
2007); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
The district court correctly calculated the guidelines imprisonment range, but
concluded that it did not adequately capture the seriousness of Jamal’s criminal history: if
Jamal’s murder conviction or either of his unscored bank robberies had counted toward his
criminal history category, Jamal would have qualified as a career offender and (even with
credit for acceptance of responsibility) faced a guidelines imprisonment range of 151 to 188
months. See U.S.S.G. § 4B1.1(a), (b)(C). The sentencing guidelines explicitly encourage
district courts to sentence above the range when a defendant’s criminal history score does
not truly reflect the seriousness of prior crimes, U.S.S.G. § 4A1.3(a), and particularly now
under the discretionary guidelines regime, the sentencing judge is free to take into account

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No. 07‐3643 Page 3
fortuities that spare the defendant career‐offender status. See, e.g., United States v. McIntyre,
531 F.3d 481, 484 (7th Cir. 2008); United States v. Valle, 458 F.3d 652, 657 (7th Cir. 2006). The
district court discharged its duty to consider all of the relevant information under § 3553(a),
not only Jamal’s prior convictions, but also the drug addiction that Jamal blamed for his
most‐recent bank robbery and his educational achievements while in prison. Counsel has
not identified any factor that the district court did not take into account, and nor have we.
Accordingly, any argument about the reasonableness of Jamal’s prison sentence would be
frivolous.
Finally, counsel considers whether Jamal might argue that the sentencing court
unlawfully delegated its authority to specify a condition of supervised release by not
defining the number of drug tests Jamal must take while on supervised release. Counsel
correctly concludes that this argument would be frivolous. Jamal did not object, limiting
our review to plain error. United States v. Tejeda, 476 F.3d 471, 474 (7th Cir. 2007). We have
held that failing to specify the number of drug tests is not plain error. Id. at 475.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.

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