NONPRECEDENTIAL DISPOSITION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 October 5, 2009
Decided October 6, 2009
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3321
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Eastern District of Wisconsin.
v. No. 07‐CR‐216
DARREN J. WILLIAMS, Charles N. Clevert, Jr.,
Defendant‐Appellant. Chief Judge.
O R D E R
Darren Williams was convicted after a jury trial of possessing a firearm as a felon,
18 U.S.C. § 922(g)(1), and sentenced to 120 months’ imprisonment. Williams filed a notice
of appeal, but his appointed lawyer has moved to withdraw because she cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We invited
Williams to respond to counsel’s submission, see CIR. R. 51(b), but he did not. Limiting our
review to the issues considered in counsel’s facially sufficient supporting brief, see United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002), we grant counsel’s motion and dismiss
the appeal.
Counsel first questions whether Williams might challenge his arrest on the ground
that it was not supported by probable cause, but we agree with counsel that this argument
No. 08‐3321 Page 2
would be frivolous. Two Milwaukee Police Officers had arrested Williams after an
encounter in front of a boarded‐up building, where they approached to ask questions only
to see him reach into his waistband, turn, and flee. Both police officers testified that during
their pursuit of Williams, they each saw him draw a silver gun from his waistband and toss
it to the ground. Police are allowed to investigate unprovoked flight, Illinois v. Wardlow, 528
U.S. 119, 124‐25 (2000); United States v. Lawshea, 461 F.3d 857, 859‐60 (7th Cir. 2006), and
once the officers saw the gun thrown, they had probable cause to make an arrest, United
States v. Sawyer, 224 F.3d 675, 680‐81 (7th Cir. 2000).
Counsel also considers whether Williams might challenge the sufficiency of the trial
evidence. We would overturn a conviction for insufficient evidence only if, viewing the
evidence in the light most favorable to the government, no rational jury could have found
the essential elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Cannon, 539 F.3d 601, 603 (7th Cir. 2008), cert. denied,
129 S. Ct. 2013 (2009). At trial the key issue was whether Williams possessed the gun (he
conceded that he had a previous felony conviction and that the gun recovered by police had
traveled in interstate commerce), but the jury heard testimony from two bystanders who
saw Williams flee and from the police officers who saw Williams toss the gun away. Thus,
we agree with counsel that any challenge based on the sufficiency of the evidence would be
frivolous.
Next counsel considers whether Williams might challenge the district court’s
application at sentencing of an enhanced offense level based on two factual findings.
Counsel first considers challenging the finding—set forth in the presentence report—that
the firearm was stolen. But a challenge to the finding that the gun was stolen would be
frivolous because Williams did not contest it at sentencing, and a district court may accept
as true any assertion of fact in a presentence report that is not contested by the defendant.
FED. R. CRIM. P. 32(i)(3)(A); United States v. Soto‐Piedra, 525 F.3d 527, 529 (7th Cir. 2008), cert.
denied, 129 S. Ct. 261 (2008). Counsel next considers challenging the finding that the firearm
was used in connection with another felony, namely, drug distribution. But a challenge to
the firearm‐in‐connection enhancement would also be frivolous because the district court
did not clearly err in concluding that Williams was armed while guarding drugs packaged
for distribution and stored in a stolen car. The district court found Williams’s
explanation—that he only waited a few minutes in front of the car to return his friend’s
dropped car keys—“knowingly false” and contradicted by police officers’ testimony that he
been loitering in front of the car for 20 minutes. The court also found it incredible,
considering Williams’s extensive history of drug use and distribution, that he would be
unaware of the packaged drugs in the car.
No. 08‐3321 Page 3
Finally, counsel considers whether Williams might challenge the reasonableness of
his sentence. Based on an adjusted offense level of 30 and criminal history category VI,
Williams’s guideline imprisonment range was 168 to 210 months. But because his
conviction carries a maximum imprisonment term of 120 months, the guidelines range
defaults to 120 months. See U.S.S.G. § 5G1.1(a); United States v. Nurek, 578 F.3d 618, 622 (7th
Cir. 2009). A sentence within a properly calculated guidelines range is presumed
reasonable, Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Cano‐Rodriguez,
552 F.3d 637, 639 (7th Cir. 2009), and it “is hard to conceive of below‐range sentences that
would be unreasonably high,” United States v. Filipiak, 466 F.3d 582, 583 (7th Cir. 2006)
(quotation omitted). At sentencing the judge considered the appropriate factors under
18 U.S.C. § 3553(a), as well as Williams’s suggestion that a troubled childhood contributed
to his criminal history and that he discovered religion while in prison awaiting sentencing.
The district court acknowledged these arguments, but concluded that the seriousness of the
crime, his criminal history, and his lack of responsibility for his children warranted a
sentence at the statutory maximum. Because the court meaningfully considered the
§ 3553(a) factors, any argument challenging Williams’s sentence would be frivolous. See,
e.g., United States v. Panaigua‐Verdugo, 537 F.3d 722, 727 (7th Cir. 2008).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.