NONPRECEDENTIAL DISPOSITION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 21, 2012
Decided March 21, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐2126
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 10‐CR‐41
DENNIS E. PENLTON, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Dennis Penlton pleaded guilty to possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1), after police searched his home with the consent of his live‐in girlfriend and
found in his bedroom both a loaded shotgun and a loaded pistol. The district court
sentenced Penlton to 51 months’ imprisonment, the bottom of his guidelines range. Penlton
filed a notice of appeal, but his appointed lawyer has moved to withdraw because he cannot
identify a nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738 (1967). Penlton
has not accepted our invitation to respond to counsel’s motion. See CIR. R. 51(b). We confine
our review to the potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 11‐2126 Page 2
Because Penlton has told counsel that he does not want to challenge his guilty plea,
counsel properly refrains from evaluating the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel does consider whether Penlton could challenge the district court’s decision
to increase his offense level by two for obstruction of justice, see U.S.S.G. § 3C1.1, but rightly
concludes that any such challenge would be frivolous. The court explained that the increase
was warranted for two independent reasons: (1) Penlton had perjured himself at a
suppression hearing when he testified that he told police that they could not search his
residence, when in fact he had not objected to a search; and (2) in a recorded phone call
from jail Penlton tried to convince another occupant of his house to falsely claim possession
of his guns. Section 3C1.1 may be applied when a defendant willfully gives false testimony
to a judge that could influence an issue under determination, id. cmt. n. 4(F), 6; United States
v. Vallar, 635 F.3d 271, 288–89 (7th Cir. 2011), and here Penlton’s statements at the
suppression hearing were relevant to the issue of consent and whether the firearms would
be suppressed, see Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that warrantless
search of home is invalid when one occupant refuses permission to search even though
another occupant consents). The adjustment also applies to attempts to impede the
administration of justice during a prosecution, see United States v. Pabey, 664 F.3d 1084, 1094
(7th Cir. 2011), and Penlton’s request to his housemate was an attempt to make it more
difficult for the government to convict him of possessing the firearms.
Counsel also considers whether Penlton could challenge his overall prison sentence
but aptly rejects this challenge as well. Penlton’s within‐range sentence of 51 months is
presumed reasonable, see Rita v. United States, 551 U.S. 338, 341 (2007); United States v. Aslan,
644 F.3d 526, 531–32 (7th Cir. 2011), and counsel suggests no reason to set that presumption
aside. The court also meaningfully considered the sentencing factors in 18 U.S.C. § 3553(a),
noting on one hand Penlton’s previous conviction for felony murder and his admission to
using crack cocaine while on parole, and on the other hand his relatively clean record since
his successful discharge from parole. Moreover, we agree with counsel that the court
thoroughly considered a psychologist’s report offered in mitigation by Penlton diagnosing
him with mild mental retardation and several other mental disorders.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.