NONPRECEDENTIAL DISPOSITION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 March 7, 2012
Decided March 8, 2012
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐2315
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v. No. 10 CR 50042‐1
TIMOTHY C. LEE, Frederick J. Kapala
Defendant‐Appellant. Judge.
O R D E R
Timothy Lee pleaded guilty to possessing a firearm as a convicted felon, 18 U.S.C.
§ 922(g)(1), and the court imposed a 110‐month sentence at the bottom of the guidelines
range. Lee filed a notice of appeal, but his appointed counsel moves to withdraw on the
ground that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Lee has
not opposed counsel’s motion. See CIR. R. 51(b). We confine our review to the potential
No. 11‐2315 Page 2
arguments developed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d
968, 973–74 (7th Cir. 2002).
Lee had an ongoing dispute over a parking spot with Lenell Gray, who lived in the
same apartment complex as Lee’s girlfriend. One night Lee’s girlfriend went up to Gray’s
apartment to ask him to move his car and the men argued when Gray refused. Gray began
to throw a punch at Lee, and Lee pulled a gun from his pocket and fired four shots at Gray.
One bullet struck Gray through the wrist and another grazed his thigh. Police, who were at
the apartment complex for an unrelated reason, heard the shots and saw Lee holding a gun.
Gray and Lee both fled, and officers caught up with Lee a few blocks away and arrested
him.
Lee, a convicted felon, pleaded guilty to possessing the gun. In the presentence
report the probation officer recommended a base offense level of 24, U.S.S.G. § 2K2.1(a)(2),
to account for Lee’s prior felony drug conviction and a prior crime‐of‐violence
conviction—aggravated battery with a deadly weapon. The probation officer also
recommended applying a four‐level upward adjustment under § 2K2.1(b)(6)(B) because Lee
possessed the gun “in connection with” another felony offense, i.e., aggravated battery,
when he shot Gray. Lee objected to both increases, but the district court overruled the
objections, calculated a guidelines range of 110 to 120 months, and sentenced Lee to 110
months.
Because Lee does not want his guilty plea set aside, counsel correctly forgoes
discussion of challenges to the voluntariness of the plea or the adequacy of the plea
colloquy. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel considers whether the district court committed error when it denied Lee’s
objections to the guidelines calculations, but properly concludes that any challenges to those
denials would be frivolous. Lee argued that his 2006 conviction for aggravated battery with
a deadly weapon, 720 ILCS 5/12‐3, § 5/12‐4(b)(1), was not a crime of violence, and therefore
he should not have received an increased offense level under § 2K2.1(a)(2). An offense is a
crime of violence if one element of the offense is that the defendant used, attempted to use,
or threatened to use physical force against another. See U.S.S.G. § 2K2.1(a)(2) cmt. n.1(A);
id. § 4B1.2(a)(1). To determine whether Lee’s battery had an element of physical force, we
would apply the categorical approach and look to “the fact of conviction and the statutory
definition of the prior offense.” See United States v. Curtis, 645 F.3d 937, 939–40 (7th Cir.
2011); United States v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009). Lee’s situation is
straightforward: the Illinois indictment charged him with causing bodily harm through use
of a deadly weapon, and the use of a deadly weapon presents at least the threat of physical
force. See United States v. Taylor, 630 F.3d 629, 634 (7th Cir. 2010).
No. 11‐2315 Page 3
Counsel also considers whether Lee could challenge the district court’s rejection of
his argument that he should not receive the four‐level increase for using his firearm in
connection with another felony offense. U.S.S.G. § 2K2.1(b)(6)(B). The district court must
identify the felony that the defendant was alleged to have been involved in and support its
conclusions by a preponderance of the evidence from the facts in the record. See United
States v. Tapia, 610 F.3d 505, 513 (7th Cir. 2010); United States v. Purifoy, 326 F.3d 879, 880–81
(7th Cir. 2003). Lee argued that he acted in self‐defense and therefore had not committed
“another felony offense” of aggravated battery when he shot Gray.
We agree with counsel that such a challenge would be frivolous. The district court
did not accept the self‐defense argument that Lee pressed before and during the sentencing
hearing. Firing a gun is a use of deadly force, Quezada‐Luna v. Gonzales, 439 F.3d 403, 406
(7th Cir. 2006), and Lee would have been justified in using deadly force only if he
reasonably believed it was necessary to prevent imminent death or great bodily harm. 720
ILCS 5/7‐1(a); Davis v. Lambert, 388 F.3d 1052, 1065 (7th Cir. 2004). But the court found no
evidence to suggest that Lee reasonably believed that Gray’s punch would result in death or
great bodily harm; the court also found Lee’s decision to flee from the shooting and his
attempt to hide the gun inconsistent with a self‐defense claim. We would defer to the court’s
finding that it was “extremely doubtful” that Gray, with his fist, could inflict serious bodily
harm upon Lee. See United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008); United States v.
Biggs, 491 F.3d 616, 621 (7th Cir. 2007). And while counsel proposes an alternative self‐
defense argument in his brief, he correctly concludes that such a proposal would be waived
because Lee did not make it before the district court.
Finally, counsel addresses whether Lee could challenge the reasonableness of his
overall prison sentence. The sentence is at the bottom of the properly calculated guidelines
range and thus presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). Counsel has identified no basis to set
aside that presumption, nor have we. At sentencing Lee sought a term at the low end of the
guidelines. The court took into account the sentencing factors in 18 U.S.C. § 3553(a)—in
particular, Lee’s difficult upbringing, health concerns, and psychological problems,
see id. § 3553(a)(1), and the need to protect the public from Lee’s future crimes given his
extensive criminal history, see id. § 3553(a)(2)(C), almost continuous since Lee was 13 years
old. We agree with counsel that a reasonableness challenge would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.