United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted December 4, 2008

Decided December 5, 2008

Before

     FRANK H. EASTERBROOK, Chief Judge

                     WILLIAM J. BAUER, Circuit Judge

                                JOHN DANIEL TINDER, Circuit Judge

No. 08‐1096

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

ANTHONY JENKINS,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 CR 780‐1

James B. Moran,

Judge.

O R D E R

Many New Year’s Eve revelers in Joliet, Illinois, celebrated the arrival of 2006 by

shooting their guns into the air.  Around midnight police on patrol saw Anthony Jenkins

standing outside holding a gun.  When they called out to him, he ran into his girlfriend’s

home but lost his prosthetic leg just outside the door.  Officers found him inside, missing his

prosthesis, and recovered a gun from a laundry closet.  Jenkins’s first trial resulted in a

mistrial, but at his second jury trial he was convicted of possession of a firearm by a felon.

See 18 U.S.C. § 922(g)(1).  He was sentenced as an armed career criminal to a term of

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1096 Page 2

imprisonment of 188 months, at the bottom of the guidelines range.  See id. § 924(e)(1).

Jenkins filed a notice of appeal, but his appointed lawyer moves to withdraw because he is

unable to discern a nonfrivolous basis for appeal.  See Anders v. California, 386 U.S. 738

(1967).  Jenkins sent us a letter expressing surprise at counsel’s motion but did not accept

our invitation to comment on the submission.  We limit our review to the potential issues

counsel identifies.  United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).

Counsel first considers whether Jenkins could assert a Commerce Clause challenge

to § 922(g).  The statute’s constitutionality, however, is well established.  See Scarborough v.

United States, 431 U.S. 563 (1977); United States v. Williams, 410 F.3d 397, 400 (7th Cir. 2005).

Next counsel addresses whether Jenkins could challenge the sufficiency of the

evidence supporting his conviction.  But two police officers testified that they had known

Jenkins for years and saw him holding a gun.  Officers also testified that they saw a man

with a gun who lost his prosthetic leg while running toward a house, and that they found

Jenkins, missing his prosthesis, inside.  See United States v. Rice, 520 F.3d 811, 819 (7th Cir.

2008).  Jenkins stipulated that he was a felon, and evidence that the gun was manufactured

outside of Illinois established a nexus to interstate commerce.  See United States v.

Humphreys, 468 F.3d 1051, 1053‐54 (7th Cir. 2006).  On these facts, an argument that a

rational jury could not have found Jenkins guilty would be frivolous.

Finally, counsel considers whether Jenkins could challenge his prison sentence.

Jenkins did not object to the prior convictions recounted in his presentence report, and the

sentencing judge rightly rejected his contention that a jury instead of the court should

decide whether three of those convictions qualified as serious drug offenses or violent

felonies under § 924(e)(1).  See Almendarez‐Torres v. United States, 523 U.S. 224 (1998); United

States v. Smith, 544 F.3d 781, 787 (7th Cir. 2008); United States v. Stevens, 453 F.3d 963, 967

(7th Cir. 2006).  Jenkins faced a statutory minimum of 15 years, and it would be frivolous for

him to argue that the 188‐month term he received is unreasonable.  That sentence was at the

low end of the properly calculated guidelines range, so it is presumed reasonable.  See Rita

v. United States, 127 S. Ct. 2456, 2462‐64 (2007); United States v. Mykytiuk, 415 F.3d 606, 608

(7th Cir. 2005).  And as counsel concedes, the district court adequately considered the

factors in 18 U.S.C. § 3553(a).  See United States v. Panaigua‐Verdugo, 537 F.3d 722, 727‐28 (7th

Cir. 2008).

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.