United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 26, 2006

Decided November 9, 2006

Before

 Hon. FRANK H. EASTERBROOK, Circuit Judge

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1687

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID C. MAUL,

Defendant-Appellant.

Appeal from the United States

District Court for the Central

District of Illinois

No. 05-30084-001

Jeanne E. Scott, 

Judge.

O R D E R

David Maul struggled with two federal officers who were sent to arrest him

for violating the conditions of his supervised release, which had been imposed as 

part of his sentence for federal firearm convictions. Maul pleaded guilty to forcibly

assaulting the officers, a misdemeanor. See 18 U.S.C. § 111(a). The district court

sentenced him to 12 months’ imprisonment (the statutory maximum, which fell

below the guidelines range), one year of supervised release, and a $25 special

assessment. Appointed counsel filed a notice of appeal but now moves to withdraw

because he cannot discern a nonfrivolous basis for appeal. See Anders v. California,

386 U.S. 738 (1967). Maul responded to counsel’s submission. See Cir. R. 51(b). 

Counsel’s supporting brief is facially adequate, so we limit our review to the

potential issues identified by counsel and Maul. See United States v. Tabb, 125

F.3d 583, 584 (7th Cir. 1997) (per curiam).

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1687 Page 2

Maul does not want his guilty plea set aside, and thus counsel appropriately

has omitted any discussion of the adequacy of the plea colloquy or the voluntariness

of Maul’s plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002). 

Both counsel and Maul, though, consider potential sentencing issues, beginning

with the calculation of the guidelines imprisonment range. Maul’s violation of

§ 111(a) is a Class A misdemeanor, see 18 U.S.C. §§ 111(a), 3559(a)(6), so the

sentencing guidelines apply. See U.S.S.G. § 1B1.9. 

Counsel first evaluates whether Maul might argue that the district court

erred in applying a three-level upward adjustment under U.S.S.G. § 2A2.4(b) on the

ground that Maul’s offense “involved physical contact.” At sentencing the two

federal officers and another local police officer who assisted them testified that

Maul struggled with all of them. It would be frivolous for Maul to argue that the

district court committed clear error in crediting their testimony, especially since

Maul did not even testify or offer any other contradictory evidence. The district

court’s decision is supported in the record, and Maul did not present any evidence to

challenge its accuracy. See United States v. Cross, 430 F.3d 406, 412 (7th Cir. 2005)

(explaining that a sentencing court’s finding based on sworn testimony will not be

disturbed on appeal unless the testimony was “illogical or contradicted by

documents or other physical evidence”).

Counsel next considers whether Maul could argue that the district court

overstated his criminal history score by assigning two points to an Illinois

conviction for fraudulently obtaining a driver’s license. Maul maintained that he

got the fake license to conceal his felon status so that he could buy a gun. Since he

received three criminal history points for the firearm offenses, he objected that he

should not get additional points for obtaining the driver’s license because that

offense ostensibly was part of a “single common scheme or plan.” See U.S.S.G.

§ 4A1.2(a)(2) (prior sentences in “related cases” should be treated as a single

sentence when assessing criminal history points); United States v. Sykes, 357 F.3d

672, 675-76 (7th Cir. 2004) (prior offenses committed as part of a single scheme or

plan are related). But this potential argument would also be frivolous; even if the

district judge had treated the state and federal offenses as related, Maul’s ten other

criminal history points still would have landed him in Category V, so any error

would be harmless. See U.S.S.G. Ch.5, Pt.A; United States v. Milquette, 214 F.3d

859, 864 n.2 (7th Cir. 2000) (explaining that error in calculating criminal history

score was harmless because error did not affect criminal history category); United

States v. Newman, 144 F.3d 531, 543 (7th Cir. 1998) (explaining that guidelines

error is harmless if it does not affect sentence).

Finally, counsel and Maul discuss whether an argument could be made that a

prison term at the statutory maximum is unreasonable because it does not reward
No. 06-1687 Page 3

Maul for pleading guilty. The district court noted that Maul’s imprisonment

range—which was reduced by two levels for acceptance of responsibility, see

U.S.S.G. § 3E1.1—still would have been 30 to 37 months but for the statutory cap,

see U.S.S.G. § 5G1.1(a), and for that reason the court rejected his plea for a lower

sentence. Indeed, the court noted that Maul had received a windfall because the

government had intended to charge him with a felony but drafted the indictment

using language that alleges only a misdemeanor. See United States v. Vallery, 437

F.3d 626, 633-34 (7th Cir. 2006) (holding that indictment which does not allege

physical contact charges only a misdemeanor under 18 U.S.C. § 111(a)(1)). A

guidelines sentence is presumptively reasonable, United States v. Mykytiuk, 415

F.3d 606, 607-08 (7th Cir. 2005), and counsel and Maul are unable to construct an

argument that the court was compelled to go below the range.

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