NONPRECEDENTIAL DISPOSITION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 March 19, 2008
Decided March 19, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐2049
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin
v. No. 06‐CR‐120‐002
MICHAEL L. KOSCINSKI, J. P. Stadtmueller,
Defendant‐Appellant. Judge.
O R D E R
Michael L. Koscinski pleaded guilty to one count of dealing firearms without a
license and one count of possessing a firearm as a felon, and was sentenced to 100 months’
imprisonment. See 18 U.S.C. §§ 922(a)(1), 922(g)(1), 924(a). Koscinski filed a notice of
appeal, but his appointed counsel now moves to withdraw because he cannot discern a
non‐frivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We invited
Koscinski to respond to counsel’s motion, see CIR. R. 51(b), but he has not done so.
Counsel’s supporting brief is adequate, so we limit our review to the potential issues it
identifies. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 07‐2049 Page 2
The record reveals the following events. Milwaukee police officers, responding to a
citizen’s complaint, obtained a warrant to search Koscinski’s home and there found a
firearm. About two weeks later, an informant told the police that he had bought a gun from
Koscinski, and had seen several other firearms in Koscinski’s apartment. Koscinski, a felon
based on an earlier conviction for escape, did not have a valid federal license to sell
firearms. Later on, but still before his arrest, Koscinski told federal agents that he had
received firearms to sell from his neighbor. After his arrest and indictment on the firearms
charges, Koscinski violated the conditions of his pre‐trial release by, among other things,
using cocaine and marijuana.
In their plea agreement, Koscinski and the government agreed that the applicable
base offense level for the two charged offenses was 20, and that there should be a six‐level
increase for the number of firearms involved. See U.S.S.G. § 2K2.1(a)(4), (b)(1)(C). They also
agreed to a two‐level increase for stolen firearms. See § 2K2.1(b)(4). The government
further agreed to recommend a three‐level reduction for acceptance of responsibility but
only if Koscinski behaved consistent with the acceptance of responsibility. See § 3E1.1.
Koscinski’s PSR repeated these guidelines calculations, except that it did not include
the three‐level reduction for acceptance of responsibility because, as the PSR explained,
Koscinski committed crimes while on bond. The PSR placed him in criminal history
category VI. With a total offense level of 28, the PSR recommended a sentencing range of
140 to 175 months’ imprisonment.
Koscinski objected to the criminal history calculation in the PSR. He argued that one
of his past offenses included in the calculation did not meet the requirements of
§ 4A1.2(e)(2) because it occurred more than 10 years before the offense in this case, and that
he should be in category V. The government agreed. Koscinski also contended that
category III better reflected his criminal history and likelihood of recidivism because his
past offenses consisted primarily of traffic offenses and non‐violent crimes. The
government disagreed with this. Finally, the government agreed that he should be credited
with acceptance of responsibility. An amended PSR placed him in criminal history category
V, yielding a new advisory sentencing range of 130 to 162 months’ imprisonment. The PSR
noted that with a three‐level reduction for acceptance of responsibility, the range would
then be 100 to 125 months’ imprisonment.
At sentencing, the court concluded that Koscinski should receive the three‐level
adjustment for accepting responsibility, but rejected Koscinski’s argument that criminal
history category V overstated the seriousness of his prior offenses. Turning to the
sentencing factors listed in 18 U.S.C. § 3553(a), and considering Koscinski’s personal history
of drug use, the court stated that “there is nothing more serious than guns and drug related
No. 07‐2049 Page 3
activity, and it is a deadly combination . . . whether you’re a user or dealer or distributor of
drugs and then have guns around.” The court maintained that “any reasonable person”
would conclude that Koscinski was “unable to conform to the simplest requirements” of
lawful conduct. The court also discussed the need for deterrence and protection of the
public. The court then imposed a sentence of 60 months’ imprisonment on the first count
and 100 months’ imprisonment on the second count, to be served concurrently and followed
by three years’ supervised release.
Counsel first considers whether Koscinski could challenge the voluntariness of his
guilty plea, including any defects in the plea colloquy. Counsel is correct, however, that he
cannot proceed to consider such a challenge because Koscinski told him that he does not
wish to attack the plea agreement. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir.
2003). Accordingly, we examine the issue no further.
Counsel also correctly determines that any challenge to the reasonableness of
Koscinski’s sentence would be frivolous. Although, as counsel reports, Koscinski now
disagrees with the offense level in the guidelines calculation, he told the district court in the
plea agreement that it was correct. Absent a challenge to the plea agreement, such an
argument would be waived. See United States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007);
United States v. Cooper, 243 F.3d 411, 415‐16 (7th Cir. 2001). Furthermore, Koscinski’s
sentence is at the low end of the properly calculated guidelines range and thus would be
presumed reasonable on appeal, see United States v. Rita, 127 S. Ct. 2456, 2463 (2007); United
States v. Gama‐Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006). Counsel is understandably
unable to articulate any reason why the presumption would be overcome. The district court
gave detailed and meaningful consideration to the relevant factors in 18 U.S.C. § 3553(a),
which is all it was required to do. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006).
Although Koscinski told the district court that he should not receive a higher
sentence than the co‐defendant who supplied him with the firearms for sale, any argument
that Koscinski’s sentence created an “unwarranted disparity” between him and a co‐
defendant would be frivolous. See 18 U.S.C. § 3553(a)(6). We have said repeatedly that
differences in sentences arising solely from the application of the guidelines cannot be
unwarranted. See, e.g., United States v. Duncan, 479 F.3d 924, 929 (7th Cir. 2007).
Finally, counsel reports that Koscinski belatedly received his personal copy of the
PSR. To the extent that Koscinksi is charging his counsel with ineffective assistance, this
claim is better pursued in collateral proceedings. See Massaro v. United States, 538 U.S. 500,
504‐05 (2003); United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
No. 07‐2049 Page 4
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.