In the
    United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 07-2143
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                 v.

ALAN R. KING, JR.,
                                           Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
             No. 07 CR 16—David F. Hamilton, Judge.
                          ____________
SUBMITTED OCTOBER 17, 2007—DECIDED OCTOBER 18, 2007
            AMENDED NOVEMBER 13, 20071
                   ____________


 Before EASTERBROOK, Chief Judge, and BAUER and
KANNE, Circuit Judges.
  PER CURIAM. Alan King used stolen social security
numbers to poach Hurricane Katrina relief funds, student-
loan money, Pell Grant money, and credit at various
banks and retailers. King pleaded guilty to stealing
government property, 18 U.S.C. § 641, loan fraud, 

false representation of social security numbers,


1
  An order was issued in this matter on October 18, 2007. The
panel has determined that the decision should be amended and
published as a Per Curiam opinion.
2                                               No. 07-2143

42 U.S.C. § 408(a)(7)(B), and federal student financial aid
fraud, 20 U.S.C. § 1097(a). The district court sentenced
King to a total of 105 months’ imprisonment, along
with five years’ supervised release, $183,845 in restitution,
and a $400 special assessment. King filed a notice of
appeal; perhaps anticipating our opinion in United States
v. Gammicchia, 

(7th Cir. 2007) (when a
criminal appeal is frivolous, the defendant’s attorneys
should file an Anders motion), his appointed counsel
moved to withdraw because he cannot discern a
nonfrivolous basis for appeal. See Anders v. California,

(1967). King has responded to counsel’s
facially adequate brief, see Cir. R. 51(b), so we limit our
review to the potential issues identified by counsel and
King. See United States v. Schuh, 

, 973-74
(7th Cir. 2002).
  We begin with King’s belated contention that he was
not of “sound mind” when he pleaded guilty because he
had ingested twice his morning dose of Elavil, a drug used
to treat depression and anxiety. But other than saying
that the anti-depressant elevated his mood, King has
not explained how it possibly could have impaired his
rational faculties. See, e.g., United States v. Grimes, 

, 636-37 (7th Cir. 1999); United States v. Groll,

, 758 n.2 (7th Cir. 1993). Moreover, King has
given us no reason to doubt the veracity of his sworn
statements that, notwithstanding his ingestion of the
drug, he understood the charges against him, the rights
that he was relinquishing by pleading guilty, and the
consequences of his plea. See Nunez v. United States,

, 546 (7th Cir. 2007); United States v. Fuller,

, 650 & n.3 (7th Cir. 1994). Indeed, only a
few minutes after he entered his plea, King delivered
an articulate sentencing allocution in which he described
his upbringing and his reasons for absconding while on
pretrial release—he even discussed a New York Times
No. 07-2143                                                 3

article about alternatives to prison. Given his coherent
responses, along with his attorney’s unequivocal con-
firmation that he was competent to plead guilty, it
would be frivolous for King to attempt to vacate his plea
on this ground. See, e.g., 

& n.4;
United States v. Chichakly, 

, 633-34 (7th Cir.
1991).
   Both counsel and King raise a potential challenge to
the district court’s rejection of the plea agreement King
reached with the government. See Fed. R. Crim. P.
11(c)(3)(A). Counsel notes that the district court had to
articulate a sound reason for rejecting the agreement,
United States v. Kraus, 

, 453 (7th Cir. 1998),
and that our review would be only for an abuse of discre-
tion, United States v. Martin, 

, 621 (7th Cir.
2002). The district court rejected the agreement because
it obligated the court to calculate King’s offense level as
19 and sentence him at the low end of the guidelines’
range. The district judge explained that he disagreed
with the parties’ stipulated offense level—which differed
from the probation officer’s recommendation—because it
improperly rewarded King for accepting responsibility,
see U.S.S.G. § 3E1.1, and did not include a two-level
upward adjustment for unauthorized use of another
person’s identifying information, see 

(C)(I).2 The district judge also doubted whether King’s
criminal history category, which he anticipated would
be either II or III, would account adequately for King’s
lifelong pursuit of fraud. The court concluded that a
sentence within the parties’ proposed range would be



2
  Although King contends that the government advocated for
that adjustment in breach of the plea agreement, the record
makes clear that the government upheld its end of the bargain.
In any event, King later conceded that the adjustment applied.
4                                             No. 07-2143

too low to achieve the sentencing goals enumerated in
18 U.S.C. § 3553(a), particularly the need to provide
adequate deterrence and to protect the public from
King’s future crimes, see 

(C). Those
are sound reasons to reject the plea agreement, see, e.g.,

, and thus we agree with counsel
that it would be frivolous to argue that the district court
abused its discretion.
  Counsel and King next consider whether King could
challenge the court’s finding that he obstructed justice
by attempting to flee while on pretrial release. See
U.S.S.G. § 3C1.1. Counsel notes that we would overturn
the finding only if it is clearly erroneous. See United
States v. Davis, 

, 1008 (7th Cir. 2006). King
says he could challenge the adjustment on the grounds
that he was not strictly “in custody” when he neglected
to return to a community-correction center, nor did he
fail to appear at a court hearing. Cf. United States v.
Scott, 

, 617-18 (7th Cir. 2005). But the dis-
trict court explained that King deserved the adjust-
ment because he absconded for two months, obtained a
driver’s license by using a stolen social security number,
used that false identity to purchase a car, and packed
that car with all of his personal belongings—behavior the
judge sensibly read as an attempt to elude justice. See
U.S.S.G. § 3C1.1 cmt. n.4(e); United States v. Porter, 

, 903-04 (7th Cir. 1998). Thus, we agree with
counsel that it would be frivolous to challenge the dis-
trict court’s obstruction finding.
  Counsel and King also consider whether he could
challenge the district court’s refusal to award him a
reduction for acceptance of responsibility. See U.S.S.G.
§ 3E1.1. Counsel notes that we would review that deci-
sion only for clear error, and that we would presume,
based on King’s obstruction of justice, that he had not
No. 07-2143                                                  5

accepted responsibility. See 

. King
maintains that his confession upon arrest, his voluntary
assistance to authorities in explaining the methods of his
crimes, his waiver of indictments, his prompt decision to
enter guilty pleas, and his expressions of remorse are
“exceptional circumstances,” 

warranting
credit for acceptance of responsibility. But we agree
with counsel that these arguments would be frivolous.
King’s level of cooperation was not unusual, and his
behavior while on pretrial release—recommitting the
crime of falsely representing social security numbers
so that he could obtain a fake ID and a car, in an obvious
attempt to elude authorities—was wholly inconsistent
with his having accepted responsibility for his actions.
See U.S.S.G. § 3E1.1, cmt. n.3.
  We next consider counsel and King’s potential challenge
to the district court’s criminal history calculation. The
court determined that King was in category III based in
part on King’s prior conviction for two counts of falsely
informing, see Ind. Code Ann. § 35-44-2-2 (2007). Although
normally that offense should not count toward a defen-
dant’s criminal history category, see U.S.S.G. § 4A1.2(c)(1),
the district court assessed one point for the offense
because it is similar to King’s offenses of conviction, see 

United States v. Hagenow, 

,
645 (7th Cir. 2005). Counsel notes that we would
review the district court’s criminal history categorization
de novo, see United States v. Lock, 

, 597 (7th
Cir. 2006), and we would use a “common sense” approach
to determine whether the falsely-informing offense was
similar to any of his offenses of conviction. See 

We would consider various factors—among them the
elements of falsely informing, its seriousness, King’s
level of culpability, the punishment he received, and
whether it shows recurring criminal conduct—along
with the guidelines’ language and the purposes of criminal
6                                                   No. 07-2143

history categorization. 

Here, King’s conviction
was the result of his false statements to a police offi-
cer—and later to a state-court judge—denying that his
license had been suspended and asserting that he was
being confused with his twin brother (who he said was
also named Alan King). But King has no “evil twin”; he
was attempting to escape his bad driving record by
using a new social security number (obtained through
fraud) and assuming a new identity as the well-behaved
twin brother of his former self. Because the offense
involved bald-faced lies about his identity, and because
it shows King’s recurring pattern of extremely deceptive
conduct, it easily qualifies as similar to the fraud he
perpetrated in this case. Thus, we agree that it would be
frivolous to challenge the district court’s inclusion of
this offense to categorize King’s criminal history.
  Finally, counsel and King consider whether he could
challenge the reasonableness of his 105-month prison
sentence, which was 34 months above the top of the
guidelines’ range.3 Counsel notes that we would review
the sentence for reasonableness, and that we require
only an adequate statement of the judge’s reasons,
grounded in 18 U.S.C. § 3553(a), for choosing it. See
United States v. Ngatia, 

, 501 (7th Cir.
2007). In this case the court’s explanation was nothing
short of compelling. The court noted that King “took
advantage of the most generous instincts in American


3
   King maintains that the district judge had to warn him, under
Federal Rule of Criminal Procedure 32(h), that he was planning
to sentence him outside of the guidelines’ range. But after
United States v. Booker, 

(2005), all defendants
should be aware—and King certainly was—that the sentencing
court may exercise its discretion to sentence above the guide-
line range if it is warranted by the statutory sentencing factors.
See 

.
No. 07-2143                                                 7

society” by pocketing funds set aside for victims of Hurri-
cane Katrina, and that his indirect victimization of
taxpayers required “swift, severe and visible” punishment
to deter others. See 18 U.S.C. § 3553(a)(1), (2)(A)-(B). The
court further explained that the guidelines did not ade-
quately account for King’s lifetime pursuit of fraudulent
schemes, including his convictions, as a teenager, for
bank fraud and forgery. See 

(a)(4). The
district judge acknowledged King’s problems with depres-
sion and anxiety, but credited a psychological evaluator’s
conclusion that King was otherwise malingering about
his mental-health problems. See 

The
court concluded that a heavy sentence was necessary
(1) to account for the seriousness of King’s offenses, to
promote respect for the law, and to provide just punish-
ment, see 

(2) to deter future crimes, see

and (3) to protect the public from
King’s “addiction to fraud” and likely recidivism, see 

Counsel and King cannot identify a
compelling reason why his sentence is unreasonable,
and thus we agree that it would be frivolous to pursue
this challenge. See, e.g., United States v. Walker, 

, 1007-08 (7th Cir. 2006).
   Most frivolous criminal appeals are offered by the
attorney because the defendant wanted the lawyer to
appeal. We have pointed out that no one has the right to
file a frivolous appeal and that an attorney has a duty to
file an Anders brief rather than argue silly grounds
for reversals. United States v. Bullion, 

(7th
Cir. 2006). We commend attorney James McKinley for
his handling of this appeal. We recognize that tension
exists between our directions and the need to faithfully
represent one’s clients. Here the matter was handled
with exactly the proper balance.
  The motion to withdraw is GRANTED and the ruling of
the District Court is AFFIRMED.
8                                         No. 07-2143

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—11-13-07