United States v. Bolden, Emanuel

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted August 16, 2006
Decided August 17, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-2337

UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 02-CR-1261-1
EMANUEL BOLDEN,
Defendant-Appellant. Charles R. Norgle, Sr.
Judge.

ORDER

Emanuel Bolden was convicted after a jury trial of possession of a firearm by
a felon. See 18 U.S.C. § 922(g)(1). The district court sentenced him to 293 months’
imprisonment and five years’ supervised release. Appointed counsel filed a notice of
appeal but now moves to withdraw because he cannot discern a nonfrivolous basis
for appeal. See Anders v. California, 386 U.S. 738 (1967). For his part, Bolden has
accepted our invitation to respond to counsel’s motion. See Cir. R. 51(b). Because
counsel’s supporting brief is facially adequate, we limit our review to the potential
issues identified by counsel and Bolden. See United States v. Tabb, 125 F.3d 583,
584 (7th Cir. 1997).

Counsel and Bolden first consider whether Bolden might argue that the
government presented insufficient evidence to convict him of possessing a firearm.
No. 05-2337 Page 2

We will affirm a conviction if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original); see United States v. Carrillo, 435
F.3d 767, 775 (7th Cir. 2006). At trial the government presented evidence that on
June 25, 2002, Chicago police officers arrested Bolden after he fled the scene of a
routine traffic stop. The officer who initially took up the chase testified that he saw
Bolden clutching a shiny object in the waistband of his shorts as he ran from the
stop, that he chased Bolden on foot to the vicinity of De La Salle High School, and
that after he lost sight of Bolden he saw activity around the school’s air conditioner
but could not identify its exact nature. A security guard from the high school
testified that at approximately 5:30 p.m. he saw Bolden run through the school
parking lot and “slow down” near the school’s air conditioner before he was
apprehended. Officers found the gun on top of the air conditioner following Bolden’s
arrest. And two officers said that Bolden told them, after Miranda warnings, that a
friend had given him the gun for protection. Because a rational finder of fact could
conclude from this evidence that Bolden possessed the gun, see, e.g., United States
v. Stevens, 453 F.3d 963, 966-67 (7th Cir. 2006) (finding evidence sufficient to
support possession conviction where defendant was seen sitting in passenger’s seat
of vehicle, police saw person in passenger’s seat lean forward for several seconds,
and police recovered a pistol from under passenger’s seat); United States v. Thomas,
321 F.3d 627, 635-36 (7th Cir. 2003) (recognizing that jury could find possession
where defendant was seen with a gun, gun was found in public area where
defendant had been seen, and defendant admitted to buying the weapon), we agree
with counsel that any challenge on this ground would be frivolous.

Counsel and Bolden also consider whether Bolden could challenge the
reasonableness of his prison sentence. We have held that a sentence within a
properly calculated guidelines range is presumptively reasonable. United States v.
Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Bolden faced a statutory minimum term of 15 years because
his prior convictions qualified him as an armed career criminal, see 18 U.S.C.
§ 924(e), a fact that also yielded a guidelines imprisonment range of 253 to 293
months under U.S.S.G. § 4B1.4. In choosing to impose 293 months, the district
court first rejected the government’s motion for a term above the range, reasoning
that the guidelines range was “fair” given Bolden’s background. The district court
then considered the factors in 18 U.S.C. § 3553(a), including the need for
punishment and deterrence as well as Bolden’s prior criminal conduct. Although
Bolden contends that his guidelines range was improperly calculated due to
impermissible judicial fact-finding that resulted in an increase to his base offense
level, judicial findings of fact that affect only the guidelines range do not raise
constitutional concerns because the judge is no longer required to impose the
guidelines sentence. See United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005).
And neither Bolden nor counsel have identified information in the record that
No. 05-2337 Page 3

would have compelled a lower sentence. Thus we agree with counsel that this
potential argument would be frivolous. See Mykytiuk, 415 F.3d at 608.

Finally, Bolden considers whether he could argue that his trial counsel was
ineffective. We have instructed, however, that it is usually better to bring a claim of
ineffective assistance of counsel in a collateral proceeding under 18 U.S.C. § 2255
where the record necessary to support the claim can be developed. E.g., United
States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003); see Massaro v. United States, 538
U.S. 500, 504-05 (2003). And this case is no exception.

Counsel’s motion to withdraw is GRANTED, and, given our agreement with
counsel that this appeal is frivolous, Bolden’s motion for substitute counsel is
DENIED. The appeal is DISMISSED.