United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 26, 2007

Decided September 27, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

No. 07-1888

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALBERT BARRINGER,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of

Indiana, Indianapolis Division.

No. 1:07CR00009-001

John Daniel Tinder,

Judge.

O R D E R

Albert Barringer—a homeless man with a previous conviction for threatening

a United States probation officer—used a razor to scratch the paint on four vehicles

parked outside the federal courthouse in Indianapolis, Indiana. Three of them were

privately owned, but one was a Chevrolet Tahoe owned by the United States

Marshals Service; Barringer scratched the letters “USM” onto its door. Barringer

pleaded guilty to damaging government property, see 18 U.S.C. § 1361, and the

parties stipulated that the loss for purposes of applying the sentencing guidelines

did not exceed $5,000. But the probation officer calculated a loss of $7,034, which

included the damage Barringer caused to the privately owned vehicles. At

sentencing the district court adopted the probation officer’s calculation. The court

thus started with a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), and added

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-1888 Page 2

two levels to reflect a loss between $5,000 and $10,000, see id. § 2B1.1(b)(1)(B). 

After subtracting two levels for acceptance of responsibility, see id. § 3E1.1(a), the

court applied the resulting offense level of 6 against Barringer’s criminal history

category of IV, for a guidelines imprisonment range of 6 to 12 months. The court

then considered the sentencing factors under 18 U.S.C. § 3553(a) and sentenced

Barringer to a term of 30 months.

Barringer appeals, but his appointed counsel has moved to withdraw because

he cannot discern any nonfrivolous argument to pursue. See Anders v. California,

386 U.S. 738 (1967). We invited Barringer to comment on counsel’s submission, see

Cir. R. 51(b), but he has not responded. We review only those potential issues

identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d

968, 973-74 (7th Cir. 2002).

Counsel reports that Barringer does not want to have his guilty plea set

aside, and thus he considers only potential challenges to Barringer’s sentence. See

United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). Counsel first asks

whether Barringer might argue that the district court erred by considering as

relevant conduct his vandalism of the privately owned vehicles when that conduct

could be charged only as a state, rather than a federal, offense. See Ind. Code 35-

43-1-2. But nothing in the sentencing guidelines precludes the court from

considering an uncharged state offense as relevant conduct. See U.S.S.G. 

§ 1B1.3(a)(1); United States v. Johnson, 324 F.3d 875, 877-78 (7th Cir. 2003); United

States v. Hough, 276 F.3d 884, 898 (6th Cir. 2002); United States v. Martin, 157

F.3d 46, 51 (2d Cir. 1998); United States v. Pollard, 986 F.2d 44, 47 (3d Cir. 1993);

United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991). Indeed, we have

recognized that “the Supreme Court has consistently approved the use of virtually

any conduct (uncharged, acquitted, or otherwise) in sentencing.” United States v.

Porter, 23 F.3d 1274, 1279 (7th Cir. 1994). Accordingly, counsel properly concludes

that it would be frivolous for Barringer to argue that the district court erred in

considering as relevant conduct his damage to the privately owned vehicles.

Counsel next considers whether Barringer could argue that his aboveguidelines prison sentence is unreasonable. In reviewing the reasonableness of the

sentence, we would ask simply whether the district court gave a reasoned basis for

it after considering the parties’ arguments and the sentencing factors set forth in 18

U.S.C. § 3553(a). See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); United

States v. Vitrano, 495 F.3d 387, 391 (7th Cir. 2007). The farther the sentence varies

from the advisory guidelines range, the more detailed the court’s explanation must

be. United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). Here, the

sentencing court explicitly considered the factors set forth in § 3553(a) and

explained in detail why those factors point to an above-guidelines sentence. The

court found that Barringer’s vandalism was designed specifically to harass federal
No. 07-1888 Page 3

officials. The court was particularly troubled that Barringer targeted cars parked

at the federal courthouse even after serving a 27-month sentence for threatening

his probation officer. That prior sentence, the court reasoned, had done nothing to

deter Barringer. The court concluded that a 30-month sentence was necessary to

stop Barringer from harassing federal employees, to protect the public from further

crimes, and to give Barringer access to mental-health treatment and vocational

training. Because the court gave ample reasons for Barringer’s 30-month sentence,

counsel correctly concludes that it would be frivolous to argue that the sentence is

unreasonable.

We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.