United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 21, 2012

Decided March 21, 2012

Before

    WILLIAM J. BAUER, Circuit Judge

  MICHAEL S. KANNE, Circuit Judge

  ANN CLAIRE WILLIAMS, Circuit Judge

No. 11‐2126

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

DENNIS E. PENLTON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 10‐CR‐41

Rudolph T. Randa,

Judge.

O R D E R

Dennis Penlton pleaded guilty to possession of a firearm by a felon, 18 U.S.C.

§ 922(g)(1), after police searched his home with the consent of his live‐in girlfriend and

found in his bedroom both a loaded shotgun and a loaded pistol. The district court

sentenced Penlton to 51 months’ imprisonment, the bottom of his guidelines range. Penlton

filed a notice of appeal, but his appointed lawyer has moved to withdraw because he cannot

identify a nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738 (1967). Penlton

has not accepted our invitation to respond to counsel’s motion. See CIR. R. 51(b). We confine

our review to the potential issues identified in counsel’s facially adequate brief. See United

States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐2126 Page 2

Because Penlton has told counsel that he does not want to challenge his guilty plea,

counsel properly refrains from evaluating the adequacy of the plea colloquy or the

voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).

Counsel does consider whether Penlton could challenge the district court’s decision

to increase his offense level by two for obstruction of justice, see U.S.S.G. § 3C1.1, but rightly

concludes that any such challenge would be frivolous. The court explained that the increase

was warranted for two independent reasons: (1) Penlton had perjured himself at a

suppression hearing when he testified that he told police that they could not search his

residence, when in fact he had not objected to a search; and (2) in a recorded phone call

from jail Penlton tried to convince another occupant of his house to falsely claim possession

of his guns. Section 3C1.1 may be applied when a defendant willfully gives false testimony

to a judge that could influence an issue under determination, id. cmt. n. 4(F), 6; United States

v. Vallar, 635 F.3d 271, 288–89 (7th Cir. 2011), and here Penlton’s statements at the

suppression hearing were relevant to the issue of consent and whether the firearms would

be suppressed, see Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that warrantless

search of home is invalid when one occupant refuses permission to search even though

another occupant consents). The adjustment also applies to attempts to impede the

administration of justice during a prosecution, see United States v. Pabey, 664 F.3d 1084, 1094

(7th Cir. 2011), and Penlton’s request to his housemate was an attempt to make it more

difficult for the government to convict him of possessing the firearms.

Counsel also considers whether Penlton could challenge his overall prison sentence

but aptly rejects this challenge as well. Penlton’s within‐range sentence of 51 months is

presumed reasonable, see Rita v. United States, 551 U.S. 338, 341 (2007); United States v. Aslan,

644 F.3d 526, 531–32 (7th Cir. 2011), and counsel suggests no reason to set that presumption

aside. The court also meaningfully considered the sentencing factors in 18 U.S.C. § 3553(a),

noting on one hand Penlton’s previous conviction for felony murder and his admission to

using crack cocaine while on parole, and on the other hand his relatively clean record since

his successful discharge from parole. Moreover, we agree with counsel that the court

thoroughly considered a psychologist’s report offered in mitigation by Penlton diagnosing

him with mild mental retardation and several other mental disorders.

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