# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 27, 2014

Decided October 27, 2014

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 14

‐ 1770

UNITED STATES OF AMERICA,

Plaintiff–Appellee

,

v.

PRENTICE A. TAYLOR,

Defendant–Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 12

‐ 20061

‐ 001

Michael P. McCuskey,

Judge

.

O R D E R

Within three months Prentice Taylor robbed a fast

‐ food restaurant, a

convenience store, and a bank. He personally brandished a gun during two of those

robberies and supplied the gun his accomplice wielded during the third. Taylor was

charged with two counts of obstructing commerce by robbery, 18 U.S.C. § 1951(a), one

count of armed bank robbery, id. § 2113(a), (d), two counts of brandishing a firearm

during a crime of violence, id. § 924(c)(1), and one count of possessing a firearm as a

felon, id. § 922(g)(1). He faced a statutory minimum sentence totaling 47 years: 15 years

for the § 922(g)(1) count because he is an armed career criminal, see id. § 924(e)(1), and NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 14

‐ 1770 Page 2

32 years (7 years plus 25 years, to run consecutively to any other sentence) on the two

counts of brandishing a firearm, see id. § 924(c)(1)(A)(ii), (C)(i).

By consent Taylor pleaded guilty to all six counts before a magistrate judge, who

recommended that the district court accept those pleas. See 28 U.S.C. § 636(b)(1)(B), (C);

United States v. Harden

, 758 F.3d 886, 891 (7th Cir. 2014). The magistrate judge’s written

recommendation warns that any objections must be filed within 14 days, but Taylor

neither moved to withdraw his guilty pleas nor protested any of the magistrate judge’s

findings. The district judge accepted the guilty pleas and imposed a total sentence of

47 years and 8 months: the required 32 years for the § 924(c) counts, consecutive to a

term of 188 months—the bottom of the guidelines range of 188 to 235 months calculated

by the probation officer—for the remaining counts. Taylor filed a notice of appeal, but

his appointed lawyer asserts that the appeal is frivolous and seeks to withdraw under

Anders v. California

, 386 U.S. 738, 744 (1967). Taylor opposes the motion. See C IR

. R.

51(b). Counsel has submitted a brief that explains the nature of the case and addresses

the issues that this kind of case might be expected to involve. Because the analysis in the

brief appears to be thorough, we limit our review to the subjects discussed in counsel’s

brief plus Taylor’s response. See 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 states in his Anders submission that Taylor does not wish to challenge

any of his guilty pleas. Taylor disagrees with counsel’s assertion, but this disagreement

is immaterial because an appellate challenge to the plea colloquy or the voluntariness of

the pleas would be futile. A defendant waives his right to appellate review of a

magistrate judge’s proposed findings under § 636 if no objection is made in the district

court. See F ED

. R. C RIM

. P. 59(b)(2); United States v. Hall

, 462 F.3d 684, 688 (7th Cir. 2006);

United States v. Garcia

‐ Sandobal

, 703 F.3d 1278, 1283 (11th Cir. 2013). Taylor knew the

timeframe for filing objections and the consequences of doing nothing; thus, by failing

to object he waived the right to contest the factual and legal conclusions of the

magistrate judge. See Hall

, 462 F.3d at 688; United States v. Hernandez

‐ Rivas

, 348 F.3d 595,

598 (7th Cir. 2003). Furthermore, Taylor never moved to withdraw his guilty pleas in

the district court, so even if he could sidestep the waiver, he still would have to

establish plain error. See United States v. Vonn

, 535 U.S. 55, 59 (2002); United States v. Ali

,

619 F.3d 713, 718–19 (7th Cir. 2010). In any event, though he asserts in his Rule 51(b)

response that he wishes to challenge his pleas, he states that he intends to do so only on

the ground of ineffective assistance of counsel. And a claim of ineffective assistance

generally should be presented in a collateral action under 28 U.S.C. § 2255. See MassaroNo. 14

‐ 1770 Page 3

v. United States

, 538 U.S. 500, 504–05 (2003); United States v. Flores

, 739 F.3d 337, 341 (7th

Cir. 2014).

Counsel considers whether Taylor could argue that the consecutive minimum

sentences mandated by § 924(c) are “grossly disproportionate” and violate the Eighth

Amendment. We have rejected this contention previously and thus agree with counsel

that it would be frivolous. See United States v. Arrington

, 159 F.3d 1069, 1073 (7th Cir.

1998); see also Ewing v. California

, 538 U.S. 11, 30–31 (2003) (concluding that prison term

of 25 years to life under California ʹ s three

‐ strikes law for repeat felon who stole three

golf clubs worth $1,200 is “a rational legislative judgment, entitled to deference”).

Counsel next concludes that it would be frivolous to argue that Taylor’s statutory

minimum sentences violate the Due Process Clause of the Fifth Amendment or the

“separation of powers doctrine of the United States Constitution.” Here, too, we agree

with counsel. Although statutory minimums limit a district court’s discretion, this

limitation does not violate due process. See Chapman v. United States

, 500 U.S. 453, 467

(1991) (“Congress has the power to define criminal punishments without giving the

courts any sentencing discretion.”). Likewise, an argument based on the separation of

powers would be frivolous, as we have rejected that theory repeatedly. See United States

v. Nigg

, 667 F.3d 929, 934 (7th Cir. 2012); United States v. Brucker

, 646 F.3d 1012, 1019 (7th

Cir. 2011).

One matter remains that counsel has overlooked. Throughout his Anders

submission, counsel implies that Taylor was sentenced to a total of 47 years’

imprisonment, the minimum under the statutory scheme. That understanding is

incorrect. The district court did impose the statutory minimum terms of 7 and 25 years

on the § 924(c) counts. See 18 U.S.C. § 924(c)(1)(A)(ii), (C)(i). But the 188

‐ month term

imposed on the § 922(g)(1) count—though at the bottom of Taylor’s guidelines range—is

8 months longer than the 15

‐ year statutory minimum for an armed career criminal.

See id. § 924(e)(1). The transcript of the sentencing hearing makes clear that the district

judge thought he was imposing the shortest possible period of imprisonment, which he

described as “greater than necessary” but “statutorily required by Congress and

Seventh Circuit decisions.” A 25

‐ year term, the judge opined, would have been

sufficient.

Nonetheless, an appellate challenge to the 8

‐ month difference would be

frivolous. Taylor knew that the district court thought that 25 years would suffice, yet he

did not protest when the district court sentenced him to 188 months on the § 922(g)(1)No. 14

‐ 1770 Page 4

count. That silence is not surprising, since there is no practical difference between the

47 years mandated by statute and the 47 years plus 8 months that the court imposed.

Taylor was 58 at the time of sentencing; allowing fully for good

‐ time credits, the

unintended 8 months will make no difference unless he lives to be 98—roughly 20 years

beyond his life expectancy. See U.S. C ENSUS B UREAU

, Table 107. Expectation of Life and

Expected Deaths by Race, Sex, and Age: 2008 (2012), available at http://www.census.gov/

compendia/statab/2012/tables/12s0107.pdf (last visited Oct. 11, 2014). Thus, we would

not find that Taylor was prejudiced by the judge’s mistake.

Counsel’s motion to withdraw is GRANTED

, and the appeal is DISMISSED

.