O R D E R
Anthony Taylor pleaded guilty to possession of cocaine with intent to distribute and unlawful possession of a firearm as a felon. The district court imposed 87 months' imprisonment. Taylor appeals, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw. Anders v. California, 386 U.S. 738 (1967). In his brief, counsel explains the nature of the case and addresses issues that an appeal of this kind would typically involve. Because counsel's analysis appears thorough, and Taylor did not respond to the motion, CIR. R. 51(b), we limit our review to the subjects that counsel
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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discusses, United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal.
In January 2024, police officers in Granite City, Illinois, learned that Taylor was distributing cocaine from his residence. At the direction of investigators, a confidential source twice bought $50 worth of cocaine from Taylor. Officers later executed a search warrant at Taylor's home, where they found 46.5 grams of cocaine and three firearms, one of which had previously been reported as stolen.
Taylor pleaded guilty, without a plea agreement, to possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The U.S. Probation Office prepared a presentence investigation report (PSR). It assigned a base offense level of 24 based on two of Taylor's prior convictions: a 1987 Kansas conviction for aggravated assault on a police officer and a 2012 federal conviction for possession of cocaine. See U.S.S.G. § 2K2.1(a)(2). The PSR also added two levels for Taylor's possession of three firearms, id. § 2K2.1(b)(1)(A); two levels because one firearm was stolen, id. § 2K2.1(b)(4)(A); and four levels because Taylor possessed the firearms in connection with his cocaine offense, id. § 2K2.1(b)(6)(B).
The PSR also concluded that Taylor is a career offender, id. § 4B1.1, because he was over 18 at the time of the instant offenses, at least one of the instant offenses was a controlled substance offense, and he had at least three prior felony convictions for either a crime of violence or a controlled substance offense. In addition to the two previously noted convictions, the PSR identified a 1987 Kansas conviction for aggravated robbery. This designation increased his offense level from 32 to 34. Finally, the PSR reduced Taylor's offense level by three levels for acceptance of responsibility, id. § 3E1.1(a)-(b), resulting in a total offense level of 31.
As for criminal history, the PSR assigned Taylor a total of eight criminal history points. He received three points each for his 2012 sentence for possession of cocaine and his aggregate 1987 Kansas sentence, which included the 1987 convictions for aggravated robbery and aggravated assault on a police officer, along with a 1987 conviction for aggravated attempted escape. Id. § 4A1.1(a). He also received one point for a 2008 sentence from the revocation of parole, id. § 4A1.1(d), and one point because he had seven or more points under subsections (a) through (d), id. § 4A1.1(e). That total corresponded to a criminal history category of IV. Because the PSR also determined that Taylor is a career offender, his criminal history category was increased to VI. Id.
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§ 4B1.1(b). Based on a criminal history category of VI and a total offense level of 31, Taylor's guidelines range was 188 to 235 months' imprisonment. Taylor lodged several objections to the PSR. He first challenged his designation as a career offender, asserting that his 1987 convictions for aggravated robbery and aggravated assault were too old to qualify as predicate crimes of violence because they occurred more than 15 years before the current offense. See U.S.S.G. § 4A1.2(e)(2). Consequently, he maintained, those convictions also could not be used to calculate his base offense level. See id. § 2K2.1 cmt. n.10. He also argued that his 1987 conviction for aggravated attempted escape was not a crime of violence because it did not require the government to prove the use, attempted use, or threatened use of force against another. See United States v. Taylor, 596 U.S. 845, 860 (2022). As a result, he asserted that the conviction could not be used in either the calculation of his base offense level or as a predicate conviction for purposes of the career-offender designation. Taylor also disputed the criminal history calculation. In his view, he had only six criminal history points: three for the 2012 sentence for possession of cocaine and three for the 1987 aggregate sentence for aggravated robbery, aggravated assault, and aggravated attempted escape. He argued that the additional criminal history point for his 2008 parole-revocation sentence should not apply. He explained that § 4A1.1(d) covers only a sentence resulting from a crime of violence that receives no points under subsections (a) through (c) because it was treated as a single sentence. But at the time of the 2008 revocation, Taylor asserted, the only sentence he could still have been serving was for his 1987 conviction for aggravated attempted escape, which is not a qualifying crime of violence under § 4A1.1(d). Taylor agreed that his 1987 convictions had been aggregated into a single sentence. But he explained that the statutory maximum terms for aggravated robbery (20 years) and aggravated assault (10 years) had expired by 2008. Accordingly, the only conviction for which he still could have been serving time was the aggravated attempted escape, which did not have a statutory maximum term. Without the point for the 2008 revocation sentence, Taylor concluded, he also did not qualify for the additional point under § 4A1.1(e).
At sentencing, the district court agreed with Taylor's objections to the PSR. The court first found that there was insufficient evidence to establish that Taylor committed the 2008 offense while on parole from a sentence for a crime of violence. So the court concluded that Taylor had only six criminal history points. As to the offense level and career-offender designation, the court likewise agreed that the 1987 convictions were too old to qualify as prior crimes of violence and that the government had not shown
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that aggravated attempted escape was a crime of violence. Accordingly, the court calculated a base offense level of 20 under § 2K2.1(a)(4)(A), predicated solely on Taylor's 2012 felony conviction for possession of cocaine, and concluded that Taylor was not a career offender. Because Taylor did not dispute the PSR's calculation that the base offense level should be increased by eight levels for specific offense characteristics and reduced by three levels for acceptance of responsibility, the court adopted it. The resulting total offense level of 25 and criminal history category of III yielded a guidelines range of 70 to 87 months' imprisonment.
The court also confirmed the statutory maximums of 30 years for possession of cocaine, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and 15 years for possession of a firearm as felon, see 18 U.S.C. §§ 922(g)(1), 924(a)(8). Taylor affirmed that he had no objection to the court's revised guidelines calculation or the corresponding sentencing range. The court then invited the parties to present their positions on an appropriate sentence. The government argued that Taylor should receive a sentence at the top of the guidelines range (87 months) because of his extensive criminal history, which was not fully accounted for by the guidelines calculation. It also asserted that the sentence he received in 2012 did not deter him from criminal conduct, so a more severe sentence was necessary to promote deterrence. Taylor argued for a sentence at the bottom of the guidelines range (70 months). He noted that half of his criminal history points came from convictions that were nearly 38 years old, and that he was now 57 years old and had not committed a crime of violence in many years.
Before addressing the sentencing factors under 18 U.S.C. § 3553(a), the court addressed Taylor's mitigation arguments. The court explained that the Guidelines had accounted for the age of his convictions by excluding many of them from his criminal history calculation. Moreover, Taylor faced a significantly lower sentence based on his successful objections to the PSR. Nevertheless, the court acknowledged that Taylor's age at release might lower his risk of committing further violent crime. As to § 3553(a), the court explained that the seriousness of possessing three firearms—one of which was stolen—warranted a longer sentence. See id. § 3553(a)(2)(A). It emphasized that specific deterrence was particularly important, noting that the sentence imposed for Taylor's 2012 conviction had not deterred him from further criminal conduct. See id. § 3553(a)(2)(B). The court also highlighted the need to promote respect for the law and to protect the public, which were served by a longer sentence. See id. § 3553(a)(2)(A), (C). Accordingly, the court imposed 87 months' imprisonment for each conviction, to be served concurrently, followed by six years' supervised release.
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In his Anders brief, counsel tells us that he advised Taylor about the risks and benefits of challenging the guilty plea and determined that Taylor does not wish to withdraw his plea. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024). Counsel thus properly omits discussion of whether the plea was knowing and voluntary. See id. Counsel then concludes, correctly, that any procedural challenge to the sentence would be frivolous. The district court agreed with each of Taylor's objections to the PSR's calculation of his guidelines range. And Taylor affirmed that the guidelines calculation was accurate after the court incorporated his objections. Thus, Taylor has waived any challenge to the calculation of the guidelines range. See United States v. Fuentes, 858 F.3d 1119, 1120-21 (7th Cir. 2017). The court also properly advised Taylor of the statutory maximums. Finally, the court considered Taylor's mitigation arguments, noting that the Guidelines already accounted for the age of his prior convictions and that Taylor's age at release might reduce his risk of future violent conduct. See Gall v. United States, 552 U.S. 38, 53 (2007).
We also agree with counsel that challenging the substantive reasonableness of the sentence would be frivolous. Taylor received a within-guidelines sentence, so on appeal, we would presume that it is reasonable. United States v. Major, 33 F.4th 370, 384 (7th Cir. 2022). Nothing in the record could rebut that presumption. The court explained its rationale for Taylor's sentence by referencing multiple § 3553(a) factors, including the seriousness of the offenses, the need of protecting the public and promoting respect for the law, and the goal of providing adequate specific deterrence. See 18 U.S.C. § 3553(a)(2)(A)-(C).
We therefore GRANT counsel's motion to withdraw and DISMISS the appeal.
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