United States of America v. Donnie A. Sherrell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 4, 2023
Decided October 5, 2023
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-1283
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONNIE A. SHERRELL,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:22-CR-30095-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Donnie Sherrell appeals the sentence he received after pleading guilty to
unlawfully possessing a firearm. His appointed counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). In his
brief, counsel explains the nature of the case and addresses issues that a case of this
kind would typically involve. Because counsel’s analysis appears thorough, and
Sherrell did not respond to the motion, see C IR . R. 51(b), we limit our review to the
subjects that counsel discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We
grant the motion and dismiss the appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1283 Page 2
Deputies in Madison County, Illinois, arrested Sherrell after he escalated a
routine traffic stop into a chase. From the passenger seat, Sherrell pressed the driver’s
leg onto the accelerator and told him to go. A high-speed chase through residential
streets followed. Sherrell—who was then serving a second term of federal supervised
release after the original term was revoked—soon got out of the car and fled on foot,
with deputies pursuing him. During the foot chase, Sherrell ditched a gun in an
elementary-school playground. Based on these events, Sherrell pleaded guilty, without
a plea agreement, to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1).
The U.S. Probation Office prepared a presentence investigation report (PSR).
Applying the Sentencing Guidelines, the PSR began with a base offense level of 20
because Sherrell possessed a semi-automatic firearm capable of accepting a large
capacity magazine. See U.S.S.G. § 2K2.1(a)(4)(B). Two levels were added because
Sherrell recklessly created a substantial risk of death or serious bodily injury to others
while fleeing from the deputies. See U.S.S.G. § 3C1.2. Finally, three levels were
subtracted because Sherrell accepted responsibility for his actions and gave notice early
enough to save the government resources. See U.S.S.G. § 3E1.1(a), (b). Based on a total
offense level of 19 and Sherrell’s criminal history category of III, the guidelines range
for his sentence was 37 to 46 months’ imprisonment and 1 to 3 years’ supervised
release. Neither party objected to these calculations or the rest of the PSR.
In his sentencing memorandum, Sherrell requested a within-guidelines prison
sentence and three years of supervised release. The government argued that a
substantial upward variance—a 10-year prison sentence—was warranted, emphasizing
that Sherrell had just served a 70-month prison term that did not deter him from
quickly reoffending while he was on supervised release.
At the sentencing hearing, the district judge confirmed that there were no
objections to the PSR and adopted it in full. She then heard the parties’ arguments and
weighed the sentencing factors under 18 U.S.C. § 3553(a). In selecting a prison term of
84 months, the judge explained that factors including the dangerous circumstances of
the offense and Sherrell’s recent and serious criminal history weighed in favor of an
above-guidelines sentence and three years of supervised release.
That brings us to this appeal. In his brief, counsel first tells us that he advised
Sherrell about the risks and benefits of challenging his guilty plea and reports that
Sherrell wishes to challenge only his sentence. Counsel therefore properly forgoes

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No. 23-1283 Page 3
discussing whether the plea was valid. United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Next, counsel correctly acknowledges that Sherrell could not plausibly challenge
his sentence on procedural grounds. Any review of the guidelines calculation would be
for plain error. See United States v. Castaneda, 77 F.4th 611, 614 (7th Cir. 2023). And we
see no such error. Further, the transcript shows that the judge heard Sherrell’s
allocution and mitigating arguments, discussed the § 3553(a) factors, and otherwise
complied with procedural requirements. See Gall v. United States, 552 U.S. 38, 53 (2007).
Counsel also concludes that arguments challenging the substantive
reasonableness of Sherrell’s sentence would be frivolous. We agree. Although Sherrell’s
sentence is significantly above the guidelines range, we do not presume it to be
unreasonable; as with any sentence, we review for abuse of discretion. Id. at 51. And we
will uphold an above-guidelines sentence if the judge adequately explained the size of
the variance, consistent with 18 U.S.C. § 3553(a). United States v. Ingram, 40 F.4th 791,
796 (7th Cir. 2022). The judge here did just that. She explained that the circumstances of
the offense—Sherrell instigated a high-speed chase in a residential neighborhood and
ended up, armed, on a school playground—were particularly troubling. She also
emphasized the need to promote respect for the law and found that Sherrell’s persistent
history of firearms offenses and repeated violations of supervised release demonstrated
a pattern of disregard for the law that his criminal history category underrepresented.
Last, the judge recognized that Sherrell reoffended within months of completing a
70-month sentence, and she reasonably concluded that a longer sentence would better
deter Sherrell and protect the public.
Finally, we agree with counsel that challenges to Sherrell’s term of supervised
release and financial penalty would be fruitless. In selecting a three-year term of
supervision, the judge again cited the § 3553(a) factors and found that Sherrell’s
criminal history and his record of violating supervised release justified the length. This
explanation suffices. See Gall, 552 U.S. at 51. Sherrell was also given advance notice of
the conditions of supervised release in the PSR and did not object to any. See United
States v. Flores, 929 F.3d 443, 449–50 (7th Cir. 2019). As for the $200 fine, the judge
properly considered Sherrell’s inability to pay in imposing a fine that is well below the
minimum recommendation. See U.S.S.G. § 5E1.2(c)(3), (e).
We GRANT the motion to withdraw and DISMISS the appeal.

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