                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                     FED. R. APP. P. 32.1



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

                                Submitted February 10, 2010
                                 Decided February 17, 2010

                                            Before

                             RICHARD A. POSNER, Circuit Judge

                             JOHN DANIEL TINDER, Circuit Judge

                             DAVID F. HAMILTON, Circuit Judge
No. 08-4222

UNITED STATES OF AMERICA,                            Appeal from the United States District
     Plaintiff-Appellee,                             Court for the Northern District of Illinois,
                                                     Eastern Division.
       v.
                                                     No. 05-cr-980-1
CRAIG VENSON,
     Defendant-Appellant.                            Blanche M. Manning,
                                                     Judge.



                                          O R D ER

        Craig Venson pleaded guilty to 18 criminal counts, including one count of conspiring
to possess with intent to distribute large amounts of heroin, crack, and cocaine, see 21 U.S.C.
§§ 841(a)(1), 846; eight counts of possessing with intent to distribute multiple controlled
substances, see id. § 841(a)(1); and nine counts of using a telephone to facilitate the
distribution of drugs, see id. § 843(b). He was sentenced to concurrent terms of 262 months
in prison for the conspiracy count and two drug possession counts, 240 months for each of
the remaining § 841(a)(1) counts, and 48 months for each of the § 843(b) counts. Venson
appeals, but his appointed counsel has moved to withdraw because he cannot identify any
nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744
No. 08-4222                                                                             Page 2

(1967). Venson opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s facially adequate brief and Venson’s response. See
United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002); CIR. R. 51(b).

       Counsel begins by telling us that Venson does not wish to withdraw his plea, and
Venson, in his response, does not dispute counsel’s representation. Thus counsel properly
refrains from discussing possible challenges to the voluntary nature of the plea or the
adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).

        Next, counsel and Venson both assess whether the district court erred by applying a
two-level increase to his sentence under U.S.S.G. § 2D1.1(b)(1) for possession of a gun in
connection with Venson’s criminal conduct. At sentencing the government offered
evidence of Venson’s involvement in a shooting incident and a “gun-trade” deal. The
shooting victim identified Venson as the gunman, and bullet casings recovered from the
scene later matched a gun found in Venson’s coconspirator’s apartment, which he regularly
used to store large quantities of drugs. Regarding the gun trade, the government provided
a recording of a phone call in which Venson admitted to having one weapon, and then told
his associate to get him a second gun so he could make a two-for-one trade. Venson argues
that this evidence was insufficient to support an increase under § 2D1.1(b)(1) because there
is no proof that the gun deal ever took place, and his presentence report included an FBI
agent’s statement that “there was no evidence that any of the defendants were known to
carry firearms during drug transactions or otherwise.”

        We agree with counsel, however, that any argument challenging the § 2D1.1(b)(1)
application would be frivolous because the government met its burden of proving that
Venson possessed at least one gun during the commission of his crimes. See United States v.
Womack, 496 F.3d 791, 797 (7th Cir. 2007). The government did not need to prove that
Venson used a gun in furtherance of one of his offenses, only that he possessed a gun
during the offense. See United States v. Rollins, 544 F.3d 820, 837 (7th Cir. 2008). Even if the
gun deal did not go through, as Venson claims, the recording contains his admission that he
possessed at least one gun. As for the shooting, the victim’s identification as well as the
matching physical evidence recovered from both the crime scene and Venson’s
coconspirator’s apartment was sufficient evidence to link Venson to the gun. Evidence of
either of these incidents would be sufficient to support the guidelines application.

       Next, counsel considers whether Venson could argue that the district court erred by
applying a four-level increase under U.S.S.G. § 3B1.1(a) for his leadership role in the
conspiracy. To qualify for the § 3B1.1(a) increase, Venson must have been an “organizer or
leader of a criminal activity that involved five or more participants or was otherwise
extensive.” See U.S.S.G. § 3B1.1(a). In his plea declaration and at sentencing, Venson
No. 08-4222                                                                                 Page 3

conceded that he qualified for a two-level increase under § 3B1.1(a) for his role as an
organizer or leader of his three direct subordinates, but he denied that the conspiracy
involved, or that he controlled, at least five participants as required under § 3B1.1(a).

        Counsel correctly concludes that it would be frivolous for Venson to challenge the
four-level increase because the district court properly found that at least five others had
participated in Venson’s drug operation. The court accepted the government’s
evidence—testimony from an FBI agent, transcripts from related court proceedings, and
recorded phone calls—to find that at least four individuals delivered drugs for Venson and
that at least four others had been convicted of the drug conspiracy. This evidence—together
with Venson’s admission that he controlled three of the coconspirators—was more than
enough to support the district court’s assessment of a four-level increase under § 3B1.1(a).
See United States v. Blaylock, 413 F.3d 616, 621 (7th Cir. 2005).

        Counsel also considers whether Venson could challenge the reasonableness of his
sentence. Counsel notes that the court did not provide a lengthy statement as to its findings
rejecting Venson’s arguments for mitigation (i.e., the effects of an untreated injury,
testimony from his wife and letters from his family describing his good character, and the
relative sentences that his codefendants had received).

         As counsel points out, however, any challenge to Venson’s sentence would be futile.
First, the district court correctly calculated Venson’s within-guidelines sentence, and we
presume a within-guidelines sentence to be reasonable. Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008). Second,
although the court said little in response to Venson’s arguments in mitigation, it did agree
with the government that Venson had refused the medical treatment arranged by the
marshals. Finally, the court properly applied the statutory factors set forth in § 3553(a),
again endorsing the government’s arguments that Venson had a long and violent criminal
history, that he had not learned from his past prison sentences, and that he deserved a
longer sentence than his codefendants because he was at the very top of the drug
distribution conspiracy. Although brief, the district court’s explanation of its sentencing
decision sufficiently demonstrates that the court properly considered the § 3553(a) factors
and adequately addressed Venson’s arguments in mitigation. See United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005).

        Finally, counsel assesses whether Venson could challenge the district court’s denial
of his motion to correct sentencing. See FED. R. CRIM. P. 35(a). Venson filed his Rule 35(a)
motion seven days after judgment was entered, arguing that the court should reconsider its
§ 3B1.1(a) assessment because one of the named participants allegedly had been cleared at
No. 08-4222                                                                              Page 4

sentencing of the conspiracy count—thereby removing the factual basis for a § 3B1.1(a)
increase.

        We agree with counsel that any challenge to the district court’s denial of the Rule
35(a) motion would be frivolous. Although Venson timely filed the motion, the court did
not rule on it within the jurisdictional seven-day time period specified in Rule 35(a).1 FED.
R. CRIM. P. 35(a); see United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001). The expiration
of the time limit before the court has ruled is treated as the functional equivalent to a denial
on the merits, and the judgment becomes final “on the date the district judge’s power to
alter the sentence expired.” Wisch, 275 F.3d at 626 (quoting United States v. Turner, 998 F.2d
534, 536 (7th Cir. 1993)). Moreover, Rule 35(a) motions are very narrow and allow the court
to correct a sentence only for “arithmetical, technical, or other clear error”; reconsideration
of the discretionary application of the guidelines is inappropriate. See United States v. Clark,
538 F.3d 803, 809 (7th Cir. 2008). In Venson’s case, not only did his renewed § 3B1.1(a)
challenge fall outside the scope of Rule 35(a), but the court had no authority to act after the
seven-day time period expired.

       We therefore GRANT the motion to withdraw and DISMISS Venson’s appeal.




       1
        Rule 35(a) was amended in December 2009 to lengthen the filing time for Rule 35(a)
motions to 14 days.
