John's appeal denied.
brief, as one could guess.
This haiku is lame.
John Glavin, the self-described governor of the Wisconsin Republic free state in
the Sovereign Citizens for Liberty movement, not only stopped paying federal income
taxes in 2001 but also filed fraudulent returns falsely claiming refunds for tax years 2005
and 2008 totaling more than $950,000. Glavin pleaded guilty to making a false claim
against the United States, see 18 U.S.C. § 287, and was sentenced to 36 months’
imprisonment. He filed a notice of appeal, but his appointed attorney asserts that all
possible appellate claims are frivolous and moves to withdraw under Anders v.
California, 386 U.S. 738 (1967). Glavin has not accepted our invitation to comment on
counsel’s motion. See CIR. R. 51(b). Counsel submitted a brief that explains the nature of
the case and addresses the issues that an appeal of this kind might be expected to involve. Because the analysis in the brief appears to be thorough, we limit our review to
the subjects counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first considers whether Glavin could challenge the voluntariness of his
guilty plea but neglects to say whether he discussed this possibility with his client.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287
F.3d 667, 670–71 (7th Cir. 2002). But counsel’s omission does not require that we deny
the Anders motion, because his discussion and our review of the record convince us that
such a challenge would be frivolous. See Konczak, 683 F.3d at 349. Glavin did not move
to withdraw his guilty plea in the district court, so we would review the plea colloquy
only for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The transcript of the plea colloquy reflects
that the district court substantially complied with Federal Rule of Criminal
Procedure 11. The court admonished Glavin about the rights he was waiving by
pleading guilty and assured that his plea was voluntary. See FED. R. CRIM. P. 11(b)(1),
(2). And the government proffered a factual basis for the crime, which Glavin confirmed
as correct. See FED. R. CRIM. P. 11(b)(3). Although the court did not say expressly that it
would evaluate “possible departures under the Sentencing Guidelines” and “sentencing
factors under 18 U.S.C. § 3553(a),” see FED. R. CRIM. P. 11(b)(1)(M), the court did explain
to Glavin that after calculating the guidelines range it could “give a higher sentence or a
lower one” if “such a sentence would better carry out the purposes of sentencing.” This
slight variation from the language of the rule could not amount to plain error.
See Davenport, 719 F.3d at 618.
Counsel next considers arguing that the district judge erred by refusing to recuse
herself before sentencing. Glavin, through present counsel, filed a motion under 28
U.S.C. § 455(a) demanding that the judge recuse herself after describing him as selfish
and untrustworthy during the plea hearing because, while on pretrial release, he had
filed sovereign-citizen documents with the attorney, sheriff, and county court involved
with foreclosing on his home. The lawyer is correct that this possible claim would be
without merit, and there is another more fundamental reason why an appellate claim
would be frivolous: The denial of a motion for recusal under § 455(a) must be
challenged immediately by a mandamus action, see United States v. Johnson, 680 F.3d 966,
979–80 (7th Cir. 2012); United States v. Diekemper, 604 F.3d 345, 352 (7th Cir. 2010), and
Glavin’s failure to do so would prevent our review.
Finally, counsel considers whether Glavin could challenge the reasonableness of
his prison sentence. Counsel reviewed the district court’s guidelines calculations but did
not identify any basis for challenging the total offense level of 17 and criminal-history
category of II, which yielded an imprisonment range of 27 to 33 months. Glavin’s
36-month term is a little above the top of this range, but we agree with counsel that a
reasonableness challenge would be frivolous. We will uphold an above-guidelines
sentence so long as the district court gave adequate reasons consistent with the
statutory factors. See 18 U.S.C. § 3553(a); United States v. Abebe, 651 F.3d 653, 657 (7th
Cir. 2011); United States v. McIntyre, 531 F.3d 481, 483–84 (7th Cir. 2008). The district
court explained that Glavin, a chiropractor, had put his wife and their 11 children at risk
of losing their home and possessions by not paying taxes for years. And, the court
continued, Glavin had not promised to comply with the tax laws going forward, he had
ignored court orders prohibiting his filing of petitions raising “long-discredited”
sovereign-citizen arguments during the IRS investigation, and he had benefitted from
the government’s forbearance in not pursuing additional charges based on his filing of
fictitious promissory notes and bonds with the U.S. Secretary of the Treasury and an
IRS agent from 2008 to 2010. These factors, the district court concluded, justified a
sentence three months above the guidelines range, and an argument that the court
abused its discretion in imposing that sentence would be frivolous. See United States v.
Taylor, 701 F.3d 1166, 1174–75 (7th Cir. 2012); McIntyre, 531 F.3d at 483–84.