NONPRECEDENTIAL DISPOSITION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 May 21, 2009
Decided May 22, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2829
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐CR‐181‐007
BERNELL L. MARSHALL, J.P. Stadtmueller,
Defendant‐Appellant. Judge.
O R D E R
Bernell Marshall pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C.
§§ 846, 841(a)(1), and the district court sentenced him to 88 months’ imprisonment.
Marshall appealed, but his appointed attorneys have moved to withdraw because they are
unable discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Marshall has not responded to our invitation to comment on counsel’s motion, see CIR. R.
51(b), and we accordingly confine our review to the issues identified in counsel’s brief. See
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002). Counsel inform us that Marshall
does not wish to challenge his guilty plea, and therefore counsel appropriately omit any
evaluation of Marshall’s plea colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the
guilty plea. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).
No. 08‐2829 Page 2
All that’s left for counsel to evaluate are potential challenges to Marshall’s prison
sentence. Counsel first consider whether Marshall could challenge the district court’s
finding that the conspiracy involved between five and fifteen kilograms of cocaine. Counsel
appropriately reject this potential argument as frivolous because Marshall expressly
withdrew his objection to this calculation and thus waived the argument. See United States
v. Sensmeier, 361 F.3d 982, 986‐87 (7th Cir. 2004); United States v. Cunningham, 405 F.3d 497,
502 (7th Cir. 2005). Counsel next mention that the district court failed to make factual
findings regarding Marshall’s objection to allegations in the presentence report that he
served as an “enforcer” for the head of the conspiracy and on at least one occasion assaulted
a customer to collect a drug debt. But, as counsel point out, the court did not rely upon
these allegations and so the error was limited to a violation of Federal Rule of Criminal
Procedure 32(i)(3)(B), which requires a sentencing court to explicitly state on the record
when it had determined that a ruling on disputed information in a presentence report is not
necessary because the information will have no effect on the defendant’s sentence. See, e.g.,
United States v. Cunningham, 429 F.3d 673, 678‐79 (7th Cir. 2005). That error, as far as this
record shows, was harmless, see Untied States v. Clanton, 538 F.3d 652, 656‐57 (7th Cir. 2008);
United States v. Slaughter, 900 F.2d 1119, 1123 (7th Cir. 1990), and if necessary can be rectified
through administrative determination by the Bureau of Prisons or by a petition for habeas
corpus under 28 U.S.C. § 2241. See United States v. Saeteurn, 504 F.3d 1175, 1180‐81 (9th Cir.
2007); United States v. Yakle, 463 F.3d 810, 811 (8th Cir. 2006); United States v. Engs, 884 F.2d
894, 897 (5th Cir. 1989).
Finally, counsel analyze the reasonableness of Marshall’s prison sentence. With a
minor‐role reduction, see U.S.S.G. § 3B1.2, and credit for acceptance of responsibility, id.
§ 3E1.1, Marshall’s total offense level of 26, combined with his criminal history category of
IV, yielded a guidelines imprisonment range of 92 to 112 months. The court evaluated the
factors set forth in 18 U.S.C. § 3553(a) and explained that Marshall’s steps to change his life,
including enrolling in school, getting a job, and refraining from using drugs, warranted a
sentence below the range but, given the seriousness of his drug offense, not as low as the 72
months Marshall suggested. The court instead settled upon a term of 88 months, still below
the suggested range. We have never found a below‐range sentence to be unreasonably
high, see, e.g., United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008), and counsel are
unable to identify any reason why this case might be different.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.