United States v. Bouman
United States v. Bouman
Opinion of the Court
ORDER
A jury found Chad Bouman guilty of possession with intent to distribute more than 5 grams of crack, 21 U.S.C. § 841(a)(1), possession of a short-barreled shotgun in furtherance of a drug offense, 18 U.S.C. § 924(c)(1), and possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). The district court sentenced Bouman to concurrent terms of 135 and 120 months’ imprisonment on the first and third counts plus a mandatory 120-month consecutive term on the second count. Bouman appealed, and his lawyer now seeks to withdraw because he believes that all grounds for appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s brief is facially adequate, and Bouman has responded under Circuit Rule 51(b), so we confine our attention to the potential issues identified by counsel and Bouman. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Both counsel and Bouman initially consider potential constitutional problems with the statutes underlying the charges. The validity of the statutes was not raised in the district court, however, so we would review these arguments only for plain error. See Fed.R.Crim.P. 52(b). As counsel correctly notes, we have concluded that the Commerce Clause supports the provisions in 21 U.S.C. § 841 that deal with crack, and we have held that those laws do not violate either the Tenth Amendment or the Equal Protection Clause. See United States v. Westbrook, 125 F.3d 996, 1008-10 (7th Cir. 1997). We have similarly held that the Commerce Clause sustains both 18 U.S.C. § 924(c), see United States v. Arocho, 305 F.3d 627, 641-42 (7th Cir. 2002), as well as 18 U.S.C. § 922(g), see United States v. Lemons, 302 F.3d 769, 772-73 (7th Cir. 2002). And as for Bouman’s suggestion that § 922(g) violates the Second Amendment, that position has been rejected as well, United States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001), as has his contention that the Double Jeopardy Clause prohibits cumulative penalties for violations of §§ 924(c)(1) and 922(g)(1), see United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir. 1990). Accordingly, an argument that it was plain error to apply these statutes would be frivolous.
Counsel next examines whether to contest the sufficiency of the evidence supporting Bouman’s convictions. We would evaluate such claims deferentially, asking whether any rational trier of fact could have found Bouman guilty beyond a rea
Counsel next looks at several potential arguments related to sentencing. First, counsel considers whether to argue that the district court should have granted Bouman a downward departure under U.S.S.G. § 5K2.12. But as counsel points out, we would not have jurisdiction to review the contention because the district court understood that it had discretion to depart and declined to do so. See United States v. Hirsch, 280 F.3d 811, 813-14 (7th Cir. 2002).
Counsel also considers whether to pursue a claim that it was error to impose an upward adjustment for obstruction of justice. See U.S.S.G. § 3C1.1. The court imposed the adjustment after Bouman sent a letter from jail to one of his friends. The letter warned that the owner of the crack house, Steven McCauley, was a government informant who had implicated several of Bouman’s coconspirators, including Leroy, in drug trafficking. The court concluded that Bouman sent the letter because he wanted his coconspirators to intimidate McCaulley, a potential witness in Bouman’s ease. See United States v. Johnson, 46 F.3d 636, 638-39 (7th Cir. 1995); U.S.S.G. § 3C1.1, comment, (n.4). The court also observed that by identifying McCaulley as an informant Bouman violated the pretrial orders of the magistrate judge handling his case. Because any argument that the court’s findings were clearly erroneous would be frivolous, we agree with counsel that Bouman could not mount a non-frivolous challenge to the adjustment.
Both counsel and Bouman next discuss whether Bouman’s sentence on the drug charge arguably violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As counsel observes, however, Apprendi would add nothing because Bouman’s 135-month sentence for the drug offense is beneath the 20-year, default statutory-maximum for possessing even the smallest quantity of crack. See 21 U.S.C. § 841(b)(1)(C); United States v. Williams, 238 F.3d 871, 877 (7th Cir. 2001). And in any event, even
Finally, counsel considers whether Bouman could assert ineffective assistance of counsel. Ineffective assistance claims are rarely appropriate on direct review, however, because the record is typically insufficient for a complete review. See United States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
Reference
- Full Case Name
- United States v. Chad D. BOUMAN
- Cited By
- 1 case
- Status
- Published