NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2014
Decided August 19, 2014
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-3197
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 92 CR 476-1
FRANCIS KING, a.k.a. Robert Bana,
a.k.a. Wole Lajide, a.k.a. Wole A. Lajidi, John W. Darrah,
Defendant–Appellant. Judge.
ORDER
In 1992, Francis King pleaded guilty to one count of credit-card fraud, 18 U.S.C.
§ 1029(a)(2), (b)(1), after using a stolen credit card to buy a plane ticket from New York
to Chicago and trying to obtain a $1,400 cash advance. (The defendant uses the name
“Francis King” in this prosecution, and we also will use it, but we note that he told
postal inspectors that he is “Robert Bana” and gave eight other names when
interviewed by a probation officer.) King pleaded guilty, and his sentencing hearing
was scheduled for January 1993. But he absconded and was not found until
October 2012, when deputy United States marshals in Chicago matched his fingerprints
to “Wole Lajidi,” who was on probation in New York after serving jail time for identify
theft. After comparing pictures of King and “Lajidi,” investigators concluded that they
No. 13-3197 Page 2
were the same person. King was arrested in New York and brought to Chicago, where
the district court sentenced him to 21 months’ imprisonment and 3 years of supervised
release.
King has filed a notice of appeal, but his newly appointed lawyer asserts that the
appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Counsel has submitted a brief that explains the nature of the case and addresses the
issues that an appeal of this kind might be expected to involve. King has not responded
to counsel’s motion, though we invited him to. See CIR. R. 51(b). Because the analysis in
the brief appears to be thorough, we limit our review to the subjects that counsel has
discussed. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel informs us that King does not wish to challenge his guilty plea and thus
omits discussion of the adequacy of the plea colloquy or the voluntariness of the plea.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287
F.3d 667, 670–71 (7th Cir. 2002). Yet counsel also tells us that King believes his guilty
plea is void because he was not informed that, as a result of his plea, he could be
deported. But as counsel rightly notes, that challenge would be to the performance of
trial counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), and the record on appeal
lacks evidence of counsel’s alleged errors. Thus, as with most appellate challenges to
trial counsel’s performance, this issue is best left for collateral review, where a record of
counsel’s actions may be made. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Counsel first discusses the possibility of challenging King’s sentence but
concludes that doing so would be frivolous. Using the 1991 guidelines manual, a
probation officer calculated a total offense level of 10, starting with a base offense level
of 6, see U.S.S.G. § 2F1.1(a) (1991), adding 2 levels because the crime involved more than
minimal planning, id. § 2F1.1(b)(2)(A), and 2 more levels for obstruction of justice
because of King’s 20-years in hiding, id. § 3C1.1. The probation officer also calculated a
criminal-history category of IV, assessing 2 points for a 1991 conviction for possession
of criminal tools and forgery, 3 points for King’s 2009 conviction in New York, and 2
points because he committed the credit-card fraud within 6 months of his release from
imprisonment for the 1991 conviction. The district court accepted in full the probation
officer’s calculations, over King’s objections to the increase for his heightened planning
and rejection of his request for a reduction based on acceptance of responsibility,
U.S.S.G. § 3E1.1. A total offense level of 10 and criminal-history category of IV yields a
No. 13-3197 Page 3
guidelines imprisonment range of 15 to 21 months. The court sentenced King to 21
months plus 3 years of supervised release.
We agree with counsel that a challenge to the prison sentence would be
frivolous. King’s guidelines range properly was calculated using the 1991 guidelines
because using the 2012 guidelines would have resulted in a higher imprisonment range.
See Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). His offense involved obtaining
two separate false identifications to match the name on the stolen credit card and
changing the billing address associated with that card. We would agree with the district
court’s conclusion that those steps constituted more than minimal planning. See United
States v. Sonsalla, 241 F.3d 904, 908 (7th Cir. 2001); United States v. Ojo, 916 F.2d 388,
391–92 (7th Cir. 1990). King’s 20-year absence after he had pleaded guilty justifies at
least the 2-level upward adjustment for obstruction of justice, see United States v.
Martinez, 650 F.3d 667, 670–71 (7th Cir. 2011); United States v. Gonzalez, 608 F.3d 1001,
1007 (7th Cir. 2010), and that absence also negates any assertion that he accepted
responsibility for his crime, Gonzalez, 608 F.3d at 1009. And last, the district court cited
several factors from 18 U.S.C. § 3553(a) for imposing a sentence at the high end of the
guidelines range, including the nature of the fraud and the need to punish King, deter
him from future crime, and protect the public from him. See 18 U.S.C. § 3553(a)(1),
(2)(A)–(C). Counsel gives no reason to disregard the presumption that this within-
guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Smith, 562 F.3d 866, 873 (7th Cir. 2009), and we perceive none.
Counsel’s motion to withdraw is GRANTED, King’s request for substitute
counsel is DENIED, and the appeal is DISMISSED.