United States v. Allen

366 F. App'x 668

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 23, 2010
• Docket: No. 08-3889
• Status: Published

Opinion

ORDER

Kenneth Alen 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 Alen 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.CrimP. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Alen to a total of 60 months’ imprisonment — -four months less than the agreed-upon calculation. Alen 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 Cir. 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 Alen’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 Alen 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.