Judges: PerCuriam
Filed: Nov. 04, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 November 4, 2014 Decided November 4, 2014 Before RICHARD D. CUDAHY Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 14-2003 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Illinois. v. No. 13-CR-30252-MJR CARVIN G. BRO
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 November 4, 2014 Decided November 4, 2014 Before RICHARD D. CUDAHY Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 14-2003 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Illinois. v. No. 13-CR-30252-MJR CARVIN G. BROO..
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NONPRECEDENTIAL DISPOSITION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 November 4, 2014
Decided November 4, 2014
Before
RICHARD D. CUDAHY Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐2003
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 13‐CR‐30252‐MJR
CARVIN G. BROOKS, Michael J. Reagan,
Defendant‐Appellant. Chief Judge.
O R D E R
Carvin Brooks was on parole from a state sentence for burglary when he was
arrested for pummeling a female gas‐station clerk and stealing $300 from the cash
register. He pleaded guilty without a plea agreement to one count of interference with
commerce by robbery. See 18 U.S.C. § 1951. The district court sentenced him to 120
months’ imprisonment, more than double the guidelines range, and 3 years of
supervised release. Brooks was also ordered to pay $3,952 in restitution. He filed a
notice of appeal challenging his sentence, but his appointed lawyer has concluded that
the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744
No. 14‐2003 Page 2
(1967). Brooks opposes this motion. See CIR. R. 51(b). Counsel has submitted a brief that
explains the nature of the case and addresses the issues that a case of this kind might be
expected to involve. Because the analysis in the brief appears to be thorough, we limit
our review to the subjects discussed by counsel as well as those raised by Brooks. United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553
(7th Cir. 1996).
Counsel tells us that Brooks does not wish to challenge his guilty plea and thus
appropriately forgoes discussing the voluntariness of the plea or the adequacy of the
plea colloquy. 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 considers whether Brooks could argue that his 120‐month sentence, well
above the calculated range of 46‐57 months, is unreasonable and correctly concludes
that such a challenge would be frivolous. We would uphold as reasonable a sentence
that exceeds the recommended guidelines range as long as the district court justifies its
reasons consistent with the sentencing factors set forth under 18 U.S.C. § 3553(a).
See United States v. Molton, 743 F.3d 479, 484 (7th Cir. 2014); United States v. Hill, 645 F.3d
900, 911 (7th Cir. 2011). The judge here emphasized Brooks’s violent criminal history, see
18 U.S.C. § 3553(a)(1), noting that the guidelines did not adequately account for his
string of robberies and burglaries spanning twelve days in 2003 (Brooks was convicted
of crimes of violence that did not receive points because they were treated as a single
sentence under U.S.S.G. § 4A1.2(a)(2)). The judge also addressed the seriousness of the
offense, see 18 U.S.C. § 3553(a)(2)(A), remarking that Brooks “beat the tar” out of a
woman he outweighed by 100 pounds, as well as the need to promote respect for the
law, see id., justifying the lengthy sentence based on Brooks’s parole violation and his
use of heroin while incarcerated. The judge finally explained the need for both general
and specific deterrence, see id. § 3553(a)(2)(B), because the offense occurred in a
crime‐riddled area and Brooks was likely to recidivate, given his history of drug use
and violence against women.
Counsel also considers whether Brooks may raise a claim of ineffective assistance
of counsel but properly concludes that such a challenge is best reserved for collateral
review through which a record can be developed, see Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58 (7th Cir. 2005), especially
because she represented Brooks at the sentencing hearing. See United States v. Rezin, 322
F.3d 443, 445 (7th Cir. 2003).
No. 14‐2003 Page 3
Finally, in his Rule 51(b) response, Brooks contends that the district court did not
properly consider his mental health as a mitigating factor. But the judge acknowledged
Brooks’s long‐term struggle with depression and other mental‐health issues and acted
within his discretion in determining that these circumstances were outweighed by the
aggravating factors present in the case. See United States v. Smith, 721 F.3d 904, 908 (7th
Cir. 2013), cert. denied, 134 S. Ct. 660 (U.S. 2013).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.