                               UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted December 7, 2006
                             Decided December 8, 2006

                                       Before

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 06-1961

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Northern District of Illinois,
                                              Eastern Division.
      v.
                                              No. 04-CR-298-1
MICHAEL WEST,
    Defendant-Appellant.                      Blanche M. Manning,
                                              Judge.

                                     ORDER

       Michael West pleaded guilty to possessing and conspiring to possess
contraband while detained in a federal facility. See 18 U.S.C. §§ 1791(a)(2), (b)(1),
371. The district court subsequently sentenced West to 130 months’ imprisonment.
West has filed a notice of appeal, but his appointed counsel now moves to withdraw,
stating that he cannot discern a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). West has accepted our invitation to respond to
counsel’s submission (by filing a “Brief in Support of Motion Why I Need Another
Appellate Counsel”), see Cir. R. 51(b), so we will review only the potential issues
identified in counsel’s facially adequate brief and West’s response, see United States
v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 06-1961                                                                      Page 2

      West was charged in 2003 with wire fraud for his participation in a scheme to
defraud Geico Insurance Company through false insurance claims. See 18 U.S.C.
§ 1343. While West was detained at the Metropolitan Correctional Center in
Chicago awaiting resolution of that charge, he was caught taking part in a
conspiracy to smuggle heroin into the facility. His primary role in the conspiracy
was to instruct his family members to visit other detainees in the facility and
provide them with heroin concealed in bags of snack food.

       West subsequently entered into a plea agreement in which he pleaded guilty
to the possession of contraband, conspiracy, and wire-fraud charges. After the
district court accepted West’s guilty plea, it calculated a guidelines imprisonment
range of 130 to 162 months, imposed a sentence of 130 months, and ordered the
sentences for West’s possession of contraband and conspiracy convictions to run
concurrently.

      Counsel first advises us that West does not wish to withdraw his guilty plea.
He therefore appropriately refrains from discussing potential challenges to West’s
plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).

        Counsel then examines whether West could challenge his sentence on appeal,
first focusing on whether West could argue that the district court incorrectly
calculated the guidelines imprisonment range. West did not challenge the
calculation of the guidelines before the district court. Thus, our review would be for
plain error, see United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. 2005),
and counsel concludes that the district court did not plainly err when calculating
the guidelines range.

       In his response to counsel’s Anders submission, however, West asserts that
the district court incorrectly applied U.S.S.G. § 3D1.2(d) to group the possession of
contraband and conspiracy convictions when calculating the base offense level.
Namely, West states that § 3D1.2(d) prohibits the grouping of possession of
contraband convictions because such convictions are governed by § 2P1.2. See
U.S.S.G. § 3D1.2(d). However, the district court grouped West’s possession and
conspiracy convictions not under § 3D1.2(d), but rather under § 3D1.2(b). See id.
§ 3D1.2(d) (“Exclusion of an offense from grouping under this section does not
necessarily preclude grouping under another subsection.”). Moreover, § 3D1.2(b)
specifically directs courts to group counts “[w]hen one count charges a
conspiracy . . . and the other charges a substantive offense that was the sole object
of the conspiracy.” Id. § 3D1.2(b) application n.4; see also United States v. Scott, 145
F.3d 878, 885-86 (7th Cir. 1998). It therefore would be frivolous for West to argue
that the district court erred by grouping his possession of contraband and
conspiracy convictions.
No. 06-1961                                                                      Page 3

       West also states that he could argue that the district court erroneously
increased the offense level for his possession of contraband and conspiracy
convictions by four levels when it determined that he was “an organizer and leader”
of the heroin-smuggling conspiracy. See U.S.S.G. § 3B1.1(a). He asserts without
elaboration that he “was not the organizer or the leader.” But West did not need to
be the organizer or the leader for the enhancement to apply, see United States v.
Wasz, 450 F.3d 720, 729-30 (7th Cir. 2006), he needed merely to “‘have organized or
in some way directed’” another member of the conspiracy, see United States v.
Hanhardt, 361 F.3d 382, 393-94 (7th Cir. 2005) (internal citation omitted), vacated
on other grounds, Altobello v. United States, 543 U.S. 1097 (2005). West admitted
in the plea agreement that he facilitated the smuggling of heroin by instructing his
family members to meet with other inmates and furnish them heroin. This
admission, which we take as true, see United States v. Logan, 244 F.3d 553, 558
(7th Cir. 2001), substantiates the district court’s finding that West acted as an
“organizer or leader” in the heroin-smuggling conspiracy, see Wasz, 450 F.3d at 729-
30. Thus, it would be frivolous for West to argue that the district court erred by
increasing his offense level for being an “organizer or leader” of the conspiracy.

       Counsel next considers whether West could argue that his 130-month
sentence was unreasonable because the district court did not adequately consider
the sentencing factors outlined in 18 U.S.C. § 3553(a). Under United States v.
Mykytiuk, 415 F.3d 606, 607-08 (7th Cir. 2005), we presume that a sentence
imposed within the guidelines range is reasonable unless the defendant points to
§ 3553(a) factors that support a lower sentence. Although the Supreme Court
recently granted certiorari to consider whether this presumption conflicts with its
ruling in United States v. Booker, 543 U.S. 220 (2005), see United States v. Rita, 177
F. App’x 357 (4th Cir. 2006), cert. granted, 2006 WL 2307774 (U.S. Nov. 03, 2006)
(No. 06-5754), the resolution of that case would not affect our conclusion that a
challenge to West’s sentence would be frivolous. Here, the district court adequately
discussed the § 3553(a) factors before deciding that a sentence at the bottom of the
guidelines range was appropriate. For instance, the court specifically considered
West’s substantial criminal history when it noted his 48 criminal history points and
his past drug-related convictions. See 18 U.S.C. § 3553(a)(1). It also determined
that a 130-month sentence would satisfy the sentencing goals of deterrence and
rehabilitation. Namely, the court concluded that the sentence would prevent West
from committing further crimes, and allow him to participate in “some kind of
treatment” that could held him achieve “some semblance of a decent life at some
point in time.” See id. § 3553(a)(2)(D). The district court did not need to recite the
§ 3553(a) factors in a “‘checklist fashion,’” United States v. Farris, 448 F.3d 965, 969
(7th Cir. 2006) (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)),
and it did not ignore any of West’s arguments for a lower sentence, see United
States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). Thus, it would be
No. 06-1961                                                                   Page 4

frivolous for West to argue that the sentence was unreasonable or that the court
failed to adequately explain its reasons for imposing the sentence that it did.

       Next, counsel examines whether West could argue that his sentence was
unlawful because it exceeded the statutory 60-month maximum sentence for the
conspiracy conviction. See 18 U.S.C. § 371. West did not object to this discrepancy
in the district court and so we would review the district court’s sentence for plain
error. See United States v. Hernandez, 330 F.3d 964, 982 (7th Cir. 2003). When a
defendant is given concurrent prison terms on multiple counts, the fact that one or
more of those terms exceeds the statutory maximum does not constitute plain error
as long as the total sentence imposed does not exceed the aggregate maximum for
those counts. See United States v. Gray, 332 F.3d 491, 493 (7th Cir. 2003);
Hernandez, 330 F.3d at 982-84. The aggregate statutory maximum for West’s
convictions was, in fact, 300 months—60 months for the conspiracy conviction, see
18 U.S.C. § 371, and 240 months for possessing contraband, see id. § 1791(b)(1).
The district court thus did not plainly err in imposing the 130-month sentence, and
it would be frivolous for West to argue otherwise.

      Finally, in his Anders response West identifies several additional arguments
that he could make on appeal, but these potential arguments are vague and
undeveloped, and thus need not be addressed here. See United States v. Turcotte,
405 F.3d 515, 536 (7th Cir. 2005).

      The motion to withdraw is GRANTED, and the appeal is DISMISSED.
