NONPRECEDENTIAL DISPOSITION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 July 20, 2018
Decided July 23, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17‐3560
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:17‐cr‐30109‐DRH‐1
KENNETH TAYLOR, David R. Herndon,
Defendant‐Appellant. Judge.
O R D E R
After the police seized an assault rifle from Kenneth Taylor’s car and a bullet
from his home, Taylor pleaded guilty to being a felon in possession of a firearm and
ammunition (two distinct crimes). See 18 U.S.C. § 922(g)(1). The district judge sentenced
him to two concurrent terms of 78 months in prison (the upper end of the Guidelines
range) and three years of supervised release and fined him $500. Taylor filed a notice of
appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to
withdraw. See Anders v. California, 386 U.S. 738 (1967). Taylor filed a response opposing
counsel’s motion. See CIR. R. 51(b). Counsel’s submission explains the nature of the case
and thoroughly addresses potential issues that an appeal of this kind might be expected
No. 17‐3560 Page 2
to involve, so we limit our review to the subjects that he and Taylor discuss.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel tells us that “[Taylor] does not wish to withdraw his guilty plea” and
declines to discuss any potential error related to the plea. But counsel was required to
advise his client about the risks and benefits of challenging the plea, see United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012), and he does not say if he did. Still, we may
evaluate the Anders submission if we believe that challenging the plea would be
frivolous. See id. Here, the district judge adhered to Rule 11 of the Federal Rules of
Criminal Procedure when accepting the plea. The judge confirmed, for example, that
Taylor understood the nature of the charge, the possible penalties, the role of the
Sentencing Guidelines, and the rights that he would have at trial. FED. R. CRIM. P. 11(b).
The judge also determined that Taylor’s plea was voluntary and supported by an
adequate factual basis. See id. A challenge to the plea would be unsuccessful.
Counsel then considers whether the district court applied the correct base offense
level and enhancements when calculating the Guidelines range. Because he did not
object to the calculation offered in the presentence investigation report (which the
district court adopted), we would review it for plain error. United States v. Brown,
823 F.3d 392, 394 (7th Cir. 2016). But a plain‐error challenge here would be pointless.
Because Taylor stipulated that the assault rifle underlying his § 922(g) conviction
qualified as a semiautomatic firearm with the capacity to hold 30 rounds of
ammunition, the judge appropriately set his base offense level at 20. See U.S.S.G.
§§ 2K2.1(a)(4) & cmt. 2. In addition, the judge then rightly applied a two‐level increase
for obstruction of justice because Taylor offered to pay someone to remove the firearm
from his car before the police found it, and an attempt to obstruct justice triggers the
application of that adjustment. See U.S.S.G. § 3C1.1, cmt. 4(D); United States v. Ranjel,
872 F.3d 815, 820 (7th Cir. 2017).
Taylor maintains that the judge improperly double‐counted his prior sentences
when he assigned him three criminal history points for unlawful possession of a stolen
vehicle and another three points for theft over $300. Indeed, because Taylor was
sentenced for both of these prior offenses at the same time, they should have been
treated as a single sentence. See U.S.S.G. § 4A1.2(a)(2)(B). But even if the judge plainly
erred in assigning six points instead of three, Taylor’s criminal history score would have
added up to 23—well above the 13 points required for category VI, the highest criminal
offense category, see U.S.S.G. ch. 5 pt. A. It would be frivolous to argue that the error
affected his Guidelines range.
No. 17‐3560 Page 3
Counsel also correctly decides not to challenge the sentence as substantively
unreasonable. Taylor’s 78‐month sentence is within the Guidelines range (63 to
78 months’ imprisonment, see U.S.S.G. ch. 5 pt. A), and so we may presume it to be
reasonable.” See United States v. Sunmola, 887 F.3d 830, 841 (7th Cir. 2018). The judge
explained the sentence with reference to the factors set forth in 18 U.S.C. § 3553(a). He
noted the seriousness of the crime (Taylor’s conduct was “certainly a serious offense,”)
and his history and characteristics (Taylor “just hasn’t stopped” committing crimes; he
is “a dangerous person” who “has no respect for authority, no willingness to follow the
law, [and] no willingness to let others live peaceably around him”). Despite “ample
reason” to impose an above‐Guidelines sentence, the judge declined to do so because
Taylor quickly accepted responsibility and has an antisocial personality disorder.
Taylor adds in his Rule 51(b) response that he should have received a mental‐health
evaluation before sentencing. But neither Taylor nor defense counsel asked the district
court for one, and Taylor does not explain how an evaluation would have resulted in a
lower sentence, given that the court already considered his mental health a mitigating
factor.
Last, counsel considers challenging the $500 fine on the basis that Taylor already
owed $50,000 in restitution from a previous criminal case and lacked the resources to
make an immediate payment. But the statutory factors, see 18 U.S.C. § 3572, were
addressed in the presentence report, and Taylor raised no objection to the report’s
conclusion that he could make limited payments toward a fine through the Inmate
Financial Responsibility Program and contribute up to $25 per month with expected
earnings from work while on supervised release. And the Guidelines recommended a
markedly greater fine in the range of $10,000 to $100,000. See U.S.S.G. § 5E1.2(c)(3);
United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014); United States v. Washington,
739 F.3d 1080, 1082 (7th Cir. 2014). Thus any challenge based on the imposition of the
fine would be unavailing.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.