# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 16, 2010

Decided December 22, 2010

Before

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM

, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 1887

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

FREDERICK G. GOOSBY,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Southern District of Illinois.

No. 4:09CR40056

‐ 001

‐ JPG

J. Phil Gilbert,

Judge

.

O R D E R

Frederick Goosby, along with 

### an accomplice

, sauntered into 

### First Bank and Trust in

Murphysboro, Illinois, and handed the teller a note reading, “This is a holdup.” Before

grabbing some of the money that the teller had laid out, Goosby chided her to hurry and

emphasized his impatience by thrusting what the teller believed to be a gun under his shirt.

Police arrested Goosby, who already was on supervised release for other federal

convictions, after his wife provided information about the robbery. Goosby pleaded guilty

to one count of bank robbery. 

### See 18 U.S.C. § 2113(a)

. Given his federal drug convictions

and a state conviction for aggravated battery of a child, the district court designated Goosby

as a career criminal, see U.S.S.G 

### § 4B1.1, and calculated an imprisonment range of 151 to 188

months. The court sentenced Goosby above that range to 196 months, to be served NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1887 Page 2

consecutively to the 44

‐ month term of reimprisonment imposed for violating his supervised

release.

Goosby filed a timely notice of appeal challenging his new conviction but not the

revocation of supervised release. His appointed lawyer has concluded, however, that the

appeal is frivolous and seeks permission to withdraw. See Anders v. California

, 386 U.S. 738

(1967). Goosby did not respond to our invitation to comment on counsel ʹ s motion.

See C IR

. R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our

review to the potential issue counsel discusses. See United States v. Schuh

, 289 F.3d 968,

973

‐ 74 (7th Cir. 2002). According to counsel, Goosby does not want his guilty plea vacated.

Thus counsel appropriately omits discussion about the adequacy of the plea colloquy and

the voluntariness of the plea. See United States v. Knox

, 287 F.3d 667, 671 (7th Cir. 2002).

As part of his plea agreement, Goosby conceded the accuracy of the district court’s

guideline’s calculations and also waived the right to appeal “any aspect of his conviction

and sentence” except for the reasonableness of a sentence “in excess of the Sentencing

Guidelines as determined by the Court.” This unambiguous appeal waiver stands with

Goosby’s uncontested guilty plea, United States v. Quintero

, 618 F.3d 746, 752 (7th Cir. 2010);

United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999) ; United States v. Wenger, 58 F.3d

280, 282 (7th Cir. 1995), so the only conceivable argument on appeal would be that the 196

‐

month prison term would be unreasonable as measured against the 151 to 188 month range

calculated by the district court. That potential argument, says counsel, is frivolous and we

agree.

As counsel notes, an appellate presumption of reasonableness does not apply to a

prison term above the guidelines range, but our limited review would be for abuse of

discretion, and we would uphold the sentence so long as the district court provided enough

explanation to substantiate the degree of variance above the range. United States v. Johnson,

612 F.3d 889, 896 (7th Cir. 2010) ; United States v. Miller

, 601 F.3d 734, 739 (7th Cir. 2010);

United States v. Carter

, 538 F.3d 784, 789 (7th Cir. 2008).

Here, the district court evaluated Goosby’s individual characteristics and arguments

in mitigation, including his health, his pattern of recidivism, the seriousness of the bank

robbery, and the effect on the victim teller. The district judge had sentenced Goosby for his

prior drug convictions, and in the court’s view, his “inability to live in a free society without

violating the law,” despite the numerous opportunities for reform he received in prior

dealings with the criminal justice system, warranted a sentence that was marginally above

the guidelines range. See United States v. Ellis, 622 F.3d 784

, 800 (7th Cir. 2010); United States

v. Gooden

, 564 F.3d 887, 891 (7th Cir. 2009); United States v. Jackson

, 547 F.3d 786, 793

‐ 94 (7thNo. 10

‐ 1887 Page 3

Cir. 2008);. The district court ʹ s careful consideration of the factors in 18 U.S.C. § 3553(a)

leaves Goosby no basis for an appeal.

Counsel ʹ s motion to withdraw is GRANTED, and the appeal is DISMISSED.