Submitted June 3, 2019
from the United States District Court for the Southern
District of Illinois. No. 18-CR-30074-MJR - Michael J.
Flaum, Scudder, and St. Eve, Circuit Judges.
LeFlore, who has two prior felony convictions, traded drugs
to minors in exchange for guns- one of which he sold to a
confidential informant. He pleaded guilty to the illegal
possession of a firearm. See 18 U.S.C. §
922(g). The district judge sentenced him to 96 months in
prison, the top of a 77 to 96 month Sentencing Guidelines
range, based on an offense level of 21 and a criminal history
category of VI (derived from 15 criminal history points).
LeFlore appealed, but his counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738 (1967). (LeFlore did not
respond to counsel's motion. See CiR. R. 51(b).)
Counsel explains the nature of the case and the issues that
the appeal would involve. His analysis appears thorough, so
we limit our review to the topics that he discusses. See
United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
first explains that he advised LeFlore of the possible
disadvantages of contesting the adequacy of the plea colloquy
and that LeFlore wants to challenge only his sentence.
Counsel thus properly declines to discuss arguments related
to the plea. See United States v. Konczak, 683 F.3d
348, 349 (7th Cir. 2012).
then considers arguing that the district judge erroneously
determined that LeFlore had 15 criminal history points, but
he decides that it would be frivolous to do so. The judge,
however, did make an error, in calculating the criminal
history points. The Guidelines treat sentences that are
"imposed on the same day" as one when scoring a
defendant's criminal history, unless there was an
intervening arrest. U.S.S.G. § 4A1.2(a)(2); see also
Molina-Martinez v. United States, 136 S.Ct. 1338,
1344-48 (2016). Here, accepting a probation officer's
recommendation, the judge assessed three points for a
second-degree murder conviction and two more points
for driving on a revoked license. But according to the
presentence report, LeFlore was arrested on the same day for
these offenses and was sentenced for both on the same day
approximately one year later. The judge, accordingly, should
have assigned only three points for these offenses, not five.
any challenge based on the miscalculation would be frivolous
because we would conclude that the judge's error was
harmless. An error is harmless if it did not affect the
ultimate sentence imposed. See United States v.
Shelton, 905 F.3d 1026, 1037 (7th Cir. 2018); United
States v. Clark, 906 F.3d 667, 671 (7th Cir. 2018).
Excluding the two points added in error, the district judge
should have determined that LeFlore had 13 criminal history
points: 12 points based on convictions resulting in prison
sentences of varying lengths, see U.S.S.G. §
4A1.1, and 1 point based on a conviction resulting in a fine,
see id. at § 4A1.1(c); United States v.
Fluker, 698 F.3d 988, 1003 (7th Cir. 2012). With 13
criminal history points, LeFlore would remain in the same
criminal history category of VI that the judge previously
calculated based on having assigned 15 points, and thus the
same Guidelines range would apply. See U.S.S.G. Ch.
5, pt. A (sentencing table). The judge also added that the
criminal history points and category underrepresented
point during sentencing did the judge give any indication
that he would have imposed a lower sentence if LeFlore
remained in the same criminal history category with fewer
criminal history points. As other circuits have done under
similar circumstances, we would conclude that the
miscalculation of LeFlore's criminal history points,
which did not change the applicable criminal history
category, was harmless. See, e.g., United States v.
Isaac, 655 F.3d 148, 158 (3d Cir. 2011); United
States v. Tiger, 223 F.3d 811, 812-13 (8th Cir. 2000);
United States v. Jackson, 22 F.3d 583, 585 (5th Cir.
1994); see also United States v. Monzo, 852 F.3d
1343, 1351 (11th Cir. 2017) (ruling that additional criminal
history points, if added in error, were harmless when
defendant already did not qualify for safety valve and
received statutory minimum sentence).
then considers arguing that the court applied an excessively
high base-offense level built on an erroneous conclusion that
two of LeFlore's prior Illinois convictions (for
second-degree murder, 720 ILCS 5/9-2, and domestic battery,
720 ILCS 5/12-3.2) were for crimes of violence. See
U.S.S.G. § 2K2.1(a)(2). He rightly concludes, though,
that the argument would be frivolous. A conviction under
Illinois's second-degree murder statute is a crime of
violence. United States v. Teague, 884 F.3d 726,
729-30 (7th Cir. 2018). So is a conviction for domestic
battery based on causing bodily harm under 720 ILCS
5/12-3.2(a)(1). See United States v. Waters, 823
F.3d 1062, 1064-65 (7th Cir. 2016). True, a conviction under
720 ILCS 5/12-3.2(a)(2) for domestic battery based on making
physical contact of an insulting or provoking nature falls
outside the definition of a crime of violence, see United
States v. Lynn, 851 F.3d 786, 797 (7th Cir. 2017)
(citing Illinois battery statute, 720 ILCS 5/12-3), but
LeFlore never objected to the presentence investigation
report's representation that his domestic battery
conviction was for a violent felony, and we would not
conclude that the district court plainly erred in accepting
that it was, see id. at 799-800.
next contemplates arguing that the sentence was substantively
unreasonable. But counsel accurately concludes that this
argument would be frivolous, too. The district court
appropriately considered the § 3553(a) factors,
including the seriousness of the offense (LeFlore traded
drugs to juveniles for guns), and LeFlore's history and
characteristics (LeFlore's criminal history category did
not reflect his numerous other convictions during his
"32-year crime spree"). The sentence, the court
stated, was necessary to punish and deter LeFlore, as well as
to protect the public, given his extensive criminal history.
Counsel suggests that the court erred by not addressing
LeFlore's argument that his history of alcohol and drug
use were mitigating factors. A district court, however, need
not expansively respond to every argument if its reasoning is
otherwise clear, and it need not respond at all to stock
arguments. See United States v. Graham, 915 F.3d
456, 459 (7th Cir. 2019). In any event, a defendant waives an
appellate challenge to a district court's explanation of
the sentence when he does not accept a court's invitation
to object, see United States v. Salgado, 917 F.3d
966, 970 (7th Cir. 2019), and LeFlore declined the
court's offer of "further amplification of [§]
counsel assesses potential challenges to LeFlore's
conditions while on supervised release, but he correctly
determines that LeFlore waived any such challenge. A
defendant waives appellate arguments against supervisory
conditions when he has a chance to review them before
sentencing and does not object to them. See United States
v. St. Clair, No. 18-1933, 2019 WL 2399597, at *2 (7th
Cir. June 7, 2019); United States v. Gumila, 879
F.3d 831, 837-38 (7th Cir. 2018). LeFlore said at the
sentencing hearing ...