Summary
finding lack of jurisdiction under § 3742 to review sentence imposed pursuant to Rule 11(c)(C) agreement
Summary of this case from United States v. GonzalezOpinion
No. 08-3889.
Submitted February 10, 2010.
Decided February 23, 2010.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 526-1. James B. Zagel, Judge.
Patrick Pope, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Kaaren M. Plant, Attorney, Chicago, IL, for Defendant-Appellant.
Kenneth Allen, Chicago, IL, pro se.
Before RICHARD A. POSNER, Circuit Judge, JOHN DANIEL TINDER, Circuit Judge and DAVID F. HAMILTON, Circuit Judge.
ORDER
Kenneth Allen entered into an agreement to plead guilty to one count of conspiring to distribute heroin, 21 U.S.C. §§ 846, 841(a)(1), and one count of possessing heroin with intent to distribute, id. § 841(a)(1). The parties agreed that Allen would be sentenced to a term of imprisonment calculated at 67 percent of the low end of either the applicable guidelines range or the statutory minimum sentence, whichever is greater. See FED.R.CRIM.P. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Allen to a total of 60 months' imprisonment — four months less than the agreed-upon calculation. Allen appealed. His appointed counsel now seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they have concluded that the appeal is frivolous. We invited Allen to comment on counsel's submission, see Cm. R. 51(b), but he did not respond. Our review, though, is limited to the potential issues identified in counsel's brief, United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002), provided the brief appears to be thorough and professional; and it does.
We lack jurisdiction under 18 U.S.C. § 3742(c)(1) to review Allen's sentence. When a defendant agrees to a specific Rule 11(c)(1)(C) sentence, Congress has limited our jurisdiction to review the sentence to four grounds: that his guilty plea was involuntary, that the sentence imposed is greater than what he bargained for, that the guidelines range was improperly calculated, or that his sentence was imposed in violation of the law. See 18 U.S.C. § 3742(a)(1), (c)(1); United States v. Gibson, 490 F.3d 604, 607 (7th Cir. 2007); United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir. 2005); United States v. Barnes, 83 F.3d 934, 941 (7th Cir. 1996). None is present. Counsel informs us that Allen does not want his guilty pleas set aside, and we know that his 60-month sentence, which was based on a proper calculation of the guidelines range, is four months less than what he bargained for, and does not exceed the statutory maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B).
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.