United States of America v. Andrew Lindsey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2022
Decided November 21, 2022
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-2620
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW LINDSEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:20CR89-001
Damon R. Leichty,
Judge.
O R D E R
Andrew Lindsey pleaded guilty to being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). The district judge sentenced him to 87 months in prison and
2 years of supervised release. Lindsey appealed, but his appointed attorney asserts that
the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738
(1967). Lindsey did not respond to counsel’s motion. See C IR . R. 51(b). Counsel’s brief
explains the nature of the case and addresses potential issues that an appeal of this kind
would typically involve. Because the analysis appears thorough, we limit our review to
the subjects she discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-2620 Page 2
Lindsey went to his uncle’s South Bend, Indiana, apartment to pay back money
he owed. While there, Lindsey saw his cousin, pulled out a firearm, and fired one shot
into the floor. Police officers responded to a call of shots fired and arrested Lindsey not
far from the apartment. He told the arresting officers that he had a gun for his own
protection and that he had fired it because he was afraid his cousin was going to beat
him up for not paying his uncle on time. Lindsey was charged with violating
§ 922(g)(1), and in March 2021, he pleaded guilty without a plea agreement.
At the sentencing hearing, the district judge adopted the recommendations in the
presentence investigation report (PSR) about the applicable ranges under the
Sentencing Guidelines. Neither party objected. Lindsey’s base offense level was
20 because he had a prior conviction for a controlled substance offense. See U.S.S.G.
§ 2K2.1(a)(4)(A). Concluding that Lindsey committed the felony of criminal recklessness
under Indiana law when he fired the shot into the floor with at least three other people
present, the judge added four offense levels for using or possessing the firearm in
connection with that offense. See id. § 2K2.1(b)(6)(B). The judge calculated Lindsey’s
criminal-history category to be V based on 3 convictions with sentences exceeding
13 months and another conviction for which he received 30 months’ probation. This
resulted in a guideline imprisonment range of 70 to 87 months, with a statutory
maximum of 10 years under the 2018 version of 18 U.S.C. § 924(a)(2), and a guidelines
supervised-release range of 1 to 3 years, U.S.S.G. § 5D1.2(a)(2), with a statutory
maximum of 3 years, 18 U.S.C. § 3583(b)(2).
The judge then weighed the factors under 18 U.S.C. § 3553(a). He noted that
Lindsey grew up in an impoverished neighborhood and was surrounded by
widespread drug use and gang activity, leading to his affiliation with a gang from the
1970s to the 1990s. His personal background was punctuated by tragedy: he lost his
father when he was 15 years old, lost his mother in 2017 to illness, and lost his sister to
homicide the week before the change of plea hearing. He “escaped” a criminal history
category of VI because some convictions, including a 1988 murder and a 2000 controlled
substance delivery, were too old. His various prison sentences exceeded 40 years, and
the judge noted that alternative forms of correction had been hit or miss. The judge also
considered Lindsey’s need for treatment for a heroin addiction and observed that
Lindsey’s education and employment background were mixed.
Counsel first informs us that she consulted with Lindsey and confirmed that
Lindsey wishes to challenge only his sentence, not his conviction. Counsel thus
properly refrains from discussing the validity of the guilty plea. United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).

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No. 21-2620 Page 3
Counsel next considers whether the district judge correctly calculated Lindsey’s
guidelines range. We agree that it would be frivolous to argue that the judge erred in
setting Lindsey’s base offense level at 20 because of one prior “controlled substance
offense”: an Illinois conviction in 2007 for possession with intent to deliver cocaine
within 1000 feet of a church. 720 ILCS 570/401(d), 570/407(b)(2) (2005); see United States v.
Ruth, 966 F.3d 642, 654 (7th Cir. 2020). Challenging the four-level increase for using the
firearm in connection with another felony would also be futile. See U.S.S.G.
§ 2K2.1(b)(6)(B). Lindsey admitted that he fired a gun into an inhabited dwelling, which
is criminal recklessness punishable by at least one year imprisonment under Indiana
law. See IND. C ODE §§ 35-42-2-2(b)(2)(A), 35-50-2-6(b); U.S.S.G. § 2K2.1, cmt. n. 14(C).
Counsel also rightly concludes that it would be frivolous to challenge the
calculation of Lindsey’s criminal-history category. Lindsey correctly received 3 points
for each of his 3 convictions with a sentence greater than 1 year and 1 month and
1 point for a conviction resulting in 30 months’ probation. See U.S.S.G. § 4A1.1(a), (c).
With a total of 10 criminal-history points, the judge appropriately placed Lindsey in
category V. Counsel identifies no other potential procedural errors to raise on appeal.
See Gall v. United States, 552 U.S. 38, 51 (2007).
Counsel next correctly asserts that a substantive reasonableness challenge to
Lindsey’s sentence would be frivolous. We would presume his sentence is not
unreasonably high because it fell within the properly calculated guideline range. United
States v. Major, 33 F.4th 370, 384 (7th Cir. 2022). Counsel finds no basis for rebutting that
presumption because the judge adequately explained his reasoning with reference to
the § 3553(a) factors. See United States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019). He
considered Lindsey’s difficult personal background; the potential for unwarranted
disparities; and Lindsey’s need for treatment.
We also agree with counsel that there are no nonfrivolous challenges to the term
or conditions of Lindsey’s supervised release. Lindsey did not object to either, and he
repeated at sentencing that he had no objection to the conditions, despite having the
opportunity to contest them, and he thus waived any appellate challenge to them.
United States v. Anderson, 948 F.3d 910, 910–11 (7th Cir. 2020).
In the course of reviewing counsel’s motion, we noted an error on the written
judgment form. Although the parties correctly determined that Lindsey did not qualify
as an armed career criminal subject to 18 U.S.C. § 924(e), the judgment states that
Lindsey was “adjudicated guilty” under that provision. As reflected in the sentencing
hearing transcript, however, Lindsey’s sentence fell under the 2018 version of
§ 924(a)(2), which at the time carried a 10-year maximum sentence, as compared to

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No. 21-2620 Page 4
§ 924(e)’s 15-year minimum. The discrepancy in the written judgment therefore is a
clerical error, correctable at any time under Rule 36 of the Federal Rules of Criminal
Procedure. See United States v. Anobah, 734 F.3d 733, 739 (7th Cir. 2013). After giving the
parties notice and receiving no objection, we order the district court to enter an
amended judgment that omits reference to § 924(e) and request counsel’s cooperation in
ensuring that this is done.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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