# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 11, 2005

Decided June 27, 2005

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 04-3715

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

PAUL ANTHONY NELSON,

Defendant-Appellant. Appeal from the United States

District Court for the

Northern District of Illinois,

Eastern Division.

No. 03 CR 1154

Harry D. Leinenweber

, Judge

.

O R D E R

Paul Anthony Nelson pleaded guilty to unlawfully reentering the United States

in violation of 8 U.S.C. §§ 1326(a), (b)(2). The district court imposed a sentence of 57

months’ imprisonment. Nelson appealed that sentence, but his appointed counsel now

seeks to withdraw under Anders v. Califo rnia , 386 U.S. 738 (1967), because he is

unable to find a nonfrivolous issue for appeal. Counsel’s A nders brief is facial l y adequate and Nelson did not respond under Cir cuit Rule 51(b). Thus, we limit our

review of the record to those potential issues identified in counsel’s brief. S ee United

States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003); United States v. Tabb , 125 F.3d

583, 584 (7th Cir. 1997).

Counsel first considers whether Nelson could argue that the district court

improperly applied a 16-level adjustment under U.S.S.G. § 2L1.2(b)(1)(A) because of UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-3715 Page 2

a previous New York convicti on for possession of a weapon in the second degree.

Nelson argued at sen tencing that the weapons charge should not qualify for the

adjustment bec

ause it was “grossly overstated” as a “crime of violence.” S ee

§ 2L1.2(b)(1)(A)(ii). We note that reliance on this predicate alone might suffice to

support the adjustment because criminal possession of a weapon in the second degree,

see N.Y. P ENAL L AW § 265.03, includes as an element the intent to use force. S hepard

v. United States, 125 S. Ct. 1 2 54, 1259-60 (2005); United States v. DeWayne Lewis

, 405 F.3d 511, 513-14 (7 th Cir. 2005). Regardless, the district court applied the

increase on a basis other than a “crime of violence”; it found that Nelson had another

conviction that would support the adjustment—a drug trafficking offense for which the

sentence imposed exceede d 13 months. S ee § 2L1.2(b)(1)(A)(i). In 2001 Nelson had

received a two-year sentence for unlawful possession of a controlle d substance with

intent to distribute. We agree with counsel therefore that it would be frivolous to

argue that the 16-level adjustment was improperly applied.

Counsel next con siders whether Nelson could challenge the district court’s

denial of his request for a downward departure on gro unds that the 16-level

adjustment was excessive in light of his prior offenses. Before the Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005), a discretionary refusal to

depart downward was not reviewable unless the district court mistakenly believed it

lacked authority to depart. S ee United States v. Abimbola-Amoo

, 390 F.3d 937, 938

(7th Cir. 2004). Even if B ooker now requires us to review the failure to depart for

reasonableness, the district court’s decision to remain within the correctly calculated

guidelines meets that standard, see United States v. George

, 403 F.3d 470, 472-73 (7th

Cir. 2005). We therefore agree with counsel that this potential argument would be

frivolous.

Finally, counsel asks whether Nelson could argue that the district court treated

the guidelines as mandatory and th erefore violated B ooker

. It is true that a mandatory application of the guidelines constitutes error after Booker

, and a limited

remand is required when we cannot discern what sentence th e district court would

have imposed under an advisory guideline scheme, see United States v. Paladino, 401

F.3d 471, 483-84 (7th Cir. 2005). But in this case, the district court stated an

alternative sentence on the record. When asked by the government whether it had a

practice after Blakely of imposing alternative sentences, the court responded: “In the

event that th e sentence is unconstitutional, I believe 57 months is in the range of

appropriate sentencing.” The district court’s alternative sentence is reviewed for

reasonableness, see United States v. Tedder

, 403 F.3d 836, 844 (7th Cir. 2005), and a

range like this one that is correctly calculated under the guidelines is reasonable, see George

, 403 F.3d at 472-73. Thus, we agree with counsel that it would be frivolous to

argue that Nelson’s sentence violates Booker

.No. 04-3715 Page 3

We therefore G RANT counsel’s motion to withdraw and D ISMISS the appeal.