United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted May 21, 2009

Decided May 22, 2009

Before

WILLIAM J. BAUER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

DANIEL A. MANION, Circuit Judge

No.  08‐2829

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

BERNELL L. MARSHALL,

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 07‐CR‐181‐007

J.P. Stadtmueller,

Judge.

O R D E R

Bernell Marshall pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C.

§§ 846, 841(a)(1), and the district court sentenced him to 88 months’ imprisonment.

Marshall appealed, but his appointed attorneys have moved to withdraw because they are

unable discern a nonfrivolous basis for appeal.  See Anders v. California, 386 U.S. 738 (1967).

Marshall has not responded to our invitation to comment on counsel’s motion, see CIR. R.

51(b), and we accordingly confine our review to the issues identified in counsel’s brief.  See

United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).  Counsel inform us that Marshall

does not wish to challenge his guilty plea, and therefore counsel appropriately omit any

evaluation of Marshall’s plea colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the

guilty plea.  See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).  

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐2829 Page 2

All that’s left for counsel to evaluate are potential challenges to Marshall’s prison

sentence.  Counsel first consider whether Marshall could challenge the district court’s

finding that the conspiracy involved between five and fifteen kilograms of cocaine.  Counsel

appropriately reject this potential argument as frivolous because Marshall expressly

withdrew his objection to this calculation and thus waived the argument.  See United States

v. Sensmeier, 361 F.3d 982, 986‐87 (7th Cir. 2004); United States v. Cunningham, 405 F.3d 497,

502 (7th Cir. 2005).  Counsel next mention that the district court failed to make factual

findings regarding Marshall’s objection to allegations in the presentence report that he

served as an “enforcer” for the head of the conspiracy and on at least one occasion assaulted

a customer to collect a drug debt.  But, as counsel point out, the court did not rely upon

these allegations and so the error was limited to a violation of Federal Rule of Criminal

Procedure 32(i)(3)(B), which requires a sentencing court to explicitly state on the record

when it had determined that a ruling on disputed information in a presentence report is not

necessary because the information will have no effect on the defendant’s sentence.  See, e.g.,

United States v. Cunningham, 429 F.3d 673, 678‐79 (7th Cir. 2005).  That error, as far as this

record shows, was harmless, see Untied States v. Clanton, 538 F.3d 652, 656‐57 (7th Cir. 2008);

United States v. Slaughter, 900 F.2d 1119, 1123 (7th Cir. 1990), and if necessary can be rectified

through administrative determination by the Bureau of Prisons or by a petition for habeas

corpus under 28 U.S.C. §  2241. See United States v. Saeteurn, 504 F.3d 1175, 1180‐81 (9th Cir.

2007); United States v. Yakle, 463 F.3d 810, 811 (8th Cir. 2006); United States v. Engs, 884 F.2d

894, 897 (5th Cir. 1989).

Finally, counsel analyze the reasonableness of Marshall’s prison sentence.  With a

minor‐role reduction, see U.S.S.G. § 3B1.2, and credit for acceptance of responsibility, id.

§ 3E1.1, Marshall’s total offense level of 26, combined with his criminal history category of

IV, yielded a guidelines imprisonment range of 92 to 112 months.  The court evaluated the

factors set forth in 18 U.S.C. § 3553(a) and explained that Marshall’s steps to change his life,

including enrolling in school, getting a job, and refraining from using drugs, warranted a

sentence below the range but, given the seriousness of his drug offense, not as low as the 72

months Marshall suggested.  The court instead settled upon a term of 88 months, still below

the suggested range.  We have never found a below‐range sentence to be unreasonably

high, see, e.g., United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008), and counsel are

unable to identify any reason why this case might be different.

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