NONPRECEDENTIAL DISPOSITION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 January 22, 2009
Decided February 2, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1505
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 677
DARREN HOLLIS,
Defendant‐Appellant. Wayne R. Andersen,
Judge.
O R D E R
Darren Hollis pleaded guilty to misappropriating postal funds, see 18 U.S.C. § 1711,
and was sentenced to twelve months and one day in prison. Hollis appeals, but his newly
appointed counsel cannot identify any nonfrivolous arguments to pursue and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Hollis opposes counsel’s motion.
See CIR. R. 51(b). We confine our review to the potential issues outlined in counselʹs facially
adequate brief and in Hollisʹs response. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th
Cir. 2002).
No. 08‐1505 Page 2
The government estimated that Hollis, who worked for the United States Postal
Service as a window clerk, stole $52,560 from his cash drawer over a four‐year period.
Penelope Mundo, a postal inspector, testified at sentencing that on more than 400 occasions
Hollis manipulated rental payments for post office boxes to disguise his thefts of cash.
During her investigation, Agent Mundo even videotaped Hollis pocketing money from the
cash register several times.
During the plea colloquy, Hollis admitted only that he stole more than $1,000—the
threshold for a felony—and at sentencing he disputed the government’s calculation of loss.
Hollis testified that his cash drawer was always short of change at the start of his shift, and
so he regularly added $300 of his own money. The cash he was seen removing at the end of
the day, Hollis continued, was his own money. Agent Mundo countered that when she
conducted surveillance at the start of Hollis’s shifts, she never saw him place cash into his
register. Hollis’s supervisors denied that they had a problem with too little change.
The district court calculated a total offense level of 12. The court began with a base
offense level of six, see U.S.S.G. § 2B1.1(a)(2), and added six levels because of the amount of
loss, see id. § 2B1.1(b)(1)(D). The court credited the government’s loss estimate of $52,560
and assessed a two‐level upward adjustment for obstruction of justice based on Hollis’s
insistence on a lower number. See id. § 3C1.1. At the same time, however, the court
subtracted two levels for acceptance of responsibility. See id. § 3E1.1(a). The court reasoned
that Hollis had “steadfastly admitted that he committed the acts which constitute the
offense.” The total offense level of 12 and Hollis’s criminal history category of I yielded an
imprisonment range of 10 to 16 months.
In the Anders submission, counsel first considers whether Hollis could challenge his
guilty plea. Hollis, though, has told counsel that he does not want the plea set aside, and so
counsel appropriately omits any discussion of the plea colloquy or the voluntariness of
Hollis’s guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel next examines whether Hollis could argue that the district court erred in
applying the increase for obstruction of justice on the theory that, since Hollis admitted he
committed a crime, he could not have impeded the administration of justice. See U.S.S.G.
§ 3C1.1. But obstructive conduct includes “providing materially false information to a judge
or magistrate,” and false information is material if it “would tend to influence or affect the
issue under determinationʺ if credited. See id. cmt. nn.4(f), 6. The district court found that
Hollis made “a consistent effort to understate the amount of money that he got as a result of
his embezzlement with a goal towards reducing his sentence.” Any challenge to the increase
for obstruction thus would be frivolous. See United States v. Sharp, 436 F.3d 730, 733, 737 (7th
No. 08‐1505 Page 3
Cir. 2006) (upholding increase under § 3C1.1 where defendant lied at sentencing about drug
quantity); United States v. Martin, 287 F.3d 609, 620 (7th Cir. 2002) (upholding increase
where defendant lied at trial about not consenting to a search).
Counsel also considers whether Hollis could argue that the district court’s loss
calculation is clearly erroneous. See United States v. Sykes, 357 F.3d 672, 675 (7th Cir. 2004)
(reviewing calculation of loss for clear error). A sentencing court need only make a
reasonable estimate of loss, United States v. Bhutani, 266 F.3d 661, 668 (7th Cir. 2001), and
reversal would be warranted only if the court’s calculation “evokes a ‘definite and firm
conviction that a mistake has been made.’” United States v. Schaefer, 291 F.3d 932, 937‐37
(7th Cir. 2002) (citation omitted). On appeal the burden would be on Hollis to show that the
court’s finding is “not only inaccurate, but also outside the realm of permissible
computation.” United States v. Mantas, 274 F.3d 1127, 1131 (7th Cir. 2001). Hollis did not
produce any evidence but simply denied the government’s figure, and so challenging the
district court’s loss calculation would be futile.
In his Rule 51(b) response, Hollis asserts that the court’s calculation is not supported
by sufficient evidence. He first contends that the government based its figure on
handwritten receipts rather than computer‐generated data. Why this would matter is
unclear, but in any event Hollis is mistaken. Agent Mundo examined both the computer
entries and the paper receipts Hollis created when he siphoned rental payments for post
office boxes. Hollis also contends that Mundo should not have been permitted to testify
about losses that occurred before she commenced her investigation in 2005. Investigators
are not precluded from reconstructing events based on records of past transactions, and
Hollis’s contrary suggestion is frivolous.
Equally frivolous is Hollis’s contention that factors affecting the guidelines range
were required to be alleged in the indictment and proved at sentencing beyond a reasonable
doubt. We have explained on many occasions that the Supreme Court rejected this
contention in United States v. Booker, 543 U.S. 220, 244 (2005). See, e.g., United States v.
Shannon, 518 F.3d 494, 496 (7th Cir. 2008); United States v. Hollins, 498 F.3d 622, 633 (7th Cir.
2007).
Finally, Hollis asserts that trial counsel’s performance was deficient. A claim of
ineffective assistance, however, is better pursued in a collateral proceeding where the record
may be fully developed. 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).
We therefore GRANT counselʹs motion to withdraw and DISMISS the appeal.