NONPRECEDENTIAL DISPOSITION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 25, 2021
Decided October 25, 2021
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1131
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:20cr00061
JAMES ALEXANDER,
Defendant-Appellant. Damon R. Leichty,
Judge.
ORDER
James Alexander pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). Over Alexander’s objection, the district court applied a four-point
enhancement because Alexander used the firearm to further another felony (the Indiana
felony of using a gun to intimidate another person). See U.S.S.G. § 2K2.1(b)(6)(B); IND.
CODE § 35-45-2-1(a)(1), (b)(2)(A). It also denied him a two-point downward adjustment
after finding that Alexander had not accepted responsibility. See U.S.S.G. § 3E1.1. The
court then sentenced him to a within-guideline prison term of 71 months and 2 years’
No. 21-1131 Page 2
supervised release. Alexander appeals, but his appointed counsel asserts that the appeal
is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Alexander did not respond to counsel’s brief, see CIR. R. 51(b), which explains the nature
of the case and addresses the potential issues that an appeal of this kind might be
expected to involve. Because counsel’s brief appears thorough, we limit our review to
the subjects that he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel begins by telling us that he consulted with Alexander about the risks
and benefits of challenging his guilty plea and confirmed that Alexander does not wish
to contest the validity of his plea. So, counsel properly omits any discussion about the
plea’s validity. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States
v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel next considers a challenge to the four-level enhancement for using the
firearm to further a crime—the Indiana felony of intimidating a person—and rightly
concludes that it would be frivolous. The district court heard evidence that Alexander
used a gun to threaten Aisha Martin not to leave the area where he had found her. The
evidence came from two eyewitnesses, video from police body cameras, a 911 transcript
that captured audio of the event, and Martin’s testimony (largely confirming the
eyewitnesses’ accounts). One eyewitness heard Martin cry out, “why you got this gun
in my face?” and another exclaimed, “Thank God [Martin] didn’t try to get out because
[Alexander] probably would have shot her.” Based on the evidence, the district court
found that Alexander had pointed a firearm at her to force her to stay at the scene. We
would review that finding for clear error, see United States v. Kopp, 922 F.3d 337, 341
(7th Cir. 2019), and we would not find any. Martin had earlier denied to police that
Alexander used a gun to threaten her. But the court had the discretion to credit both
witnesses who heard her say otherwise during the altercation, and her testimony at the
sentencing hearing about the gun, over her prior statement to police. See United States v.
Lockwood, 840 F.3d 896, 901 (7th Cir. 2016); United States v. Sandidge, 784 F.3d 1055, 1063
(7th Cir. 2015) (“inconsistencies” would not render statements per se incredible).
Furthermore, based on these findings, there would be no room to argue that
Alexander did not commit the Indiana felony of intimidation. Under Indiana law, one
commits unlawful intimidation by threatening another with the intent that the other
person “engage in conduct against the other person's will.” IND. CODE § 35-45-2-1(a)(1).
The threat is a felony if the defendant uses a deadly weapon, id. § 35-45-2-1(b)(2)(A),
which includes firearms, id. § 35-31.5-2-86(a)(1). The district court rightly concluded
that, by aiming his gun at Martin, Alexander feloniously intimidated her by indicating
No. 21-1131 Page 3
that, despite her desire to get away from Alexander, she had to stay put or risk getting
shot.
Next, we agree with counsel that Alexander could not reasonably challenge the
district court’s decision to withhold a two-point downward adjustment for acceptance
of responsibility. See U.S.S.G. § 3E1.1. The court initially planned to give Alexander the
deduction—despite his denial at the sentencing hearing that he had threatened
Martin—because (1) he admitted to the felon-in-possession charge and (2) the court did
not want to deter good-faith challenges to sentencing recommendations. Even then, the
district court said it could apply the deduction only with “the greatest of hesitation.”
But when Alexander addressed the court at allocution—after the court had found that
he had intimidated Martin with a gun—he doubled down on his denial of that finding.
He stated unequivocally “I never pointed the gun at [Martin].” The Guidelines advise
that a defendant who falsely denies relevant conduct that the district court considers to
be true “has acted in a manner inconsistent with acceptance of responsibility.”
Id. § 3E1.1 cmt. n.1(A). Because we give great deference to a district court’s ruling on
acceptance of responsibility, it would be frivolous to challenge this court’s decision.
Id. § 3E1.1 cmt. n.5.; see United States v. Nichols, 847 F.3d 851, 859 (7th Cir. 2017).
Turning to other sentencing challenges, counsel also rightly concludes that a
challenge to the district court’s application of the sentencing factors under 18 U.S.C.
§ 3553(a) would be pointless. The court adequately explained how Alexander’s history,
and the nature, circumstances, and seriousness of his offense, see id. § 3553(a)(1), (2)(A),
justified a “robust sentence.” See United States v. Poulin, 745 F.3d 796, 800 (7th Cir. 2014).
To begin, the court noted that Alexander had a violent past—he was convicted of
murder in 1995. (Alexander did not challenge the accuracy of the presentence report in
this respect.) It then addressed arguments that Alexander raised in mitigation: his
childhood abuse, educational achievements, and community activities following his
2011 parole. Alexander acknowledged in the district court that the court addressed
these arguments, so he waived any challenge that it did not. See United States v.
Bridgewater, 950 F.3d 928, 934 (7th Cir. 2020). And the district court reasonably rejected
these arguments by permissibly relying on the need to protect the public from gun
violence and deter illegal activity by Alexander and others. See § 3553(a)(2)(B)–
(C); United States v. Garcia-Segura, 717 F.3d 566, 568 (7th Cir. 2013). As the court saw it,
Alexander was “a gentleman who still [did] not yet get it," and this sentence was
needed to promote Alexander's respect for the law. Thus, nothing in the record would
No. 21-1131 Page 4
rebut the presumption that Alexander’s within-guidelines sentence is reasonable.
See United States v. Taylor, 907 F.3d 1046, 1051 (7th Cir. 2018).
Lastly, we agree with counsel’s conclusion that it would be hopeless to challenge
Alexander’s two-year term of supervised release. Alexander had notice of the
conditions and term, did not object to them, raising only objections to the presentence
report, and waived the reading and explanation of the conditions at the sentencing
hearing. Under these circumstances, any appellate challenge to those conditions would
be waived. See United States v. Barrett, 981 F.3d 644, 646 (7th Cir. 2020).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.