United States of America v. Justin Overholser

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2024
Decided May 29, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2468
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN OVERHOLSER,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:22-CR-35 JD
Jon E. DeGuilio,
Judge.
O R D E R
Justin Overholser pleaded guilty to stealing firearms from a federally licensed
dealer. See 18 U.S.C. § 922(u). The district court sentenced him to a below-guidelines
sentence of 33 months in prison, two years’ supervised release, and restitution. He filed
a notice of appeal, but his counsel asserts that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains
the nature of the case and addresses issues that an appeal of this kind might be
expected to involve. Because counsel’s analysis appears thorough, and Overholser did
not respond to the motion, see C IR . R. 51(b), we limit our review to the subjects that
counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2468 Page 2
Overholser stole from a firearms dealer twice in one week in 2021. On the first
night, he stole firearms, a crossbow, and ammunition; on the second night, he stole
sunglasses. He pleaded guilty in Indiana state court to burglarizing the dealer for the
sunglasses, and he pleaded guilty in federal court to stealing the firearms. After
pleading guilty to the federal charge, the probation office prepared a presentence report
(PSR) and recommended a prison term of 46 to 57 months, based on a total offense level
of 21 and a criminal history category of IV.
Overholser objected to the PSR on three grounds. First, he objected to a two-level
enhancement that the probation office applied to his base offense level. The office
applied that enhancement because, as a drug user, Overholser was “prohibited” under
18 U.S.C. § 922(g) from carrying firearms. Overholser objected that the enhancement
was unconstitutional in light of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1
(2022). Second, he contended that the probation office erroneously applied a three-level
increase based on the burglary conviction. Third, he argued that the probation office
wrongly assigned him an extra criminal history point for an unrelated drug case in
Indiana, reasoning that the state court had not yet accepted his guilty plea.
The district court overruled Overholser’s objections and sentenced him to 33
months in prison, 13 months below the bottom end of the applicable guideline range. In
justifying this sentence under 18 U.S.C. § 3553(a), the court emphasized the mitigating
facts of Overholser’s participation in drug treatment, his remorse, his work ethic, and
his devotion to his child. Regarding its ruling on the objections to the PSR and its effect
on the sentence, the court stated that, “[g]iven these mitigating factors, [it] would have
reached the same sentence regardless of its initial calculation of the guideline range.”
Later it repeated the point: “[E]ven if I calculated the guideline range differently in the
first instance, I would vary to the same range based on my consideration of the 3553(a)
factors as a whole.” Finally, the court imposed two years’ supervised release and
restitution of about $13,000 to the dealer from which he stole.
On appeal, counsel does not tell us, as he should, whether he has consulted with
Overholser about a potential challenge to his guilty plea. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002). But we can overlook that misstep because challenging
the plea would be frivolous. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012). The plea colloquy shows that, with one inconsequential omission, the court
complied with Rule 11 of the Federal Rules of Criminal Procedure. It advised
Overholser of the rights he was relinquishing and penalties he faced, including a

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No. 23-2468 Page 3
possible $250,000 judgment, but it omitted telling Overholser that it could order him to
pay some amount as “restitution.” Overholser did not move to withdraw his guilty plea
in the district court; thus we would review the court’s acceptance of the plea, despite
this omission, for plain error. See United States v. Hogue, 998 F.3d 745, 751 (7th Cir. 2021).
And he could not plausibly contend, in light of the warning about a possible $250,000
debt and the much lower restitution of $13,000, that the omission affected the validity of
his plea. See United States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016).
Counsel considers, and correctly concludes, that any procedural challenge to
Overholser’s sentence would be frivolous. He observes that, even if the district court
erred in overruling Overholser’s three objections to the PSR, the errors are necessarily
harmless because the court twice stated that it would impose the same sentence
“regardless” of those rulings. In light of the court’s statements, it would be frivolous to
urge for a sentencing remand because returning the case to the district court would
necessarily result in the same sentence. See United States v. Melvin, 948 F.3d 848, 854
(7th Cir. 2020).
Finally, counsel also correctly concludes that challenging the substantive
reasonableness of the prison term would be pointless. Even if the sentence does not
enjoy a presumption of reasonableness (given the district court’s statement that it
would impose the sentence “regardless” of the guideline range), it would be frivolous
to argue that the district court abused its discretion and imposed an unreasonable
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). In applying the sentencing
factors under § 3553(a), the court reasonably balanced the nature of his offense (stealing
firearms from a federal licensee) against his mitigating personal characteristics (a
devoted, hardworking parent with substance abuse, remorse for his offense, and receipt
of drug treatment). See United States v. Major, 33 F.4th 370, 384–85 (7th Cir. 2022).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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