NONPRECEDENTIAL DISPOSITION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 September 22, 2011
Decided September 23, 2011
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3983
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐20047‐001
TYRAN BASCOMB, Michael P. McCuskey,
Defendant‐Appellant. Chief Judge.
O R D E R
Tyran Bascomb is before us a second time. We previously remanded for resentencing
at the urging of both parties, and Bascomb, who once again was sentenced to 110 months in
prison, has appealed anew. This time his appointed lawyer seeks to withdraw on the
ground that the appeal is frivolous. See Anders v. California,
386 U.S. 738 (1967). Bascomb has
not accepted our invitation to comment on counsel’s submission. See CIR. R. 51(b). We
review only the potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
No. 10‐3983 Page 2
Bascomb, along with his girlfriend and another passenger in his van, were stopped
by police investigating a report of a man seen with a gun. Under Bascomb’s seat the police
found a handgun, and inside his girlfriend’s purse the officers found crack cocaine
packaged for distribution, a small scale, and plastic sandwich bags. Bascomb’s motel room
was searched, but no more drugs were found. He later confessed to selling crack and
admitted owning the drugs and paraphernalia in the purse.
Bascomb, a felon, pleaded guilty to possessing the gun. See
18 U.S.C. § 922(g)(1). In
the presentence report the probation officer recommended applying a four‐level upward
adjustment under U.S.S.G. § 2K2.1(b)(6) on the ground that Bascomb had possessed the gun
“in connection with” another felony offense, i.e., possession of crack with intent to
distribute. In making this recommendation the probation officer mistakenly reported that
Bascomb had “acknowledged that the crack cocaine found in the motel room was his.” Of
course there wasn’t any crack found in the motel room, but instead of clarifying that the
probation officer had meant to say van, the parties allowed the district court to wrongly
assume that crack was found in both locations. And, worse, the parties also allowed the
court to wrongly conclude that Bascomb hadn’t confessed to owning the crack found in the
van, so the judge analyzed § 2K2.1(b)(6) as if the gun had been found a considerable
distance from the crack Bascomb was selling. According to the judge, Bascomb couldn’t be
given the 4‐level increase on the basis of the crack in the van because “[t]here’s no nexus
that he knows what’s in the purse.” Even so, the court continued, the gun and the drugs did
not have to be in the same place, and it was fair to infer that Bascomb had a gun in his van
to facilitate his possession of the crack thought to be in his motel room. On that basis the
court applied § 2K2.1(b)(6) and calculated a guidelines imprisonment range of 110 to 120
months. The court sentenced Bascomb to 110 months.
This application of § 2K2.1(b)(6) was the sole issue raised by Bascomb in his last
appeal, and the probation officer’s unchallenged misstatement that crack had been found in
the motel room figured prominently in that argument. The government responded to
Bascomb’s appellate claim by confessing error and proposing a remand for resentencing,
and we granted that relief. United States v. Bascomb, No. 10‐1883 (7th Cir. Sept. 21, 2010). On
remand the probation officer corrected the presentence report to clarify that Bascomb, after
his arrest, had confessed that he owned the crack found in his girlfriend’s purse. The district
court adopted that factual statement without objection, and this time, with an accurate
understanding of the events surrounding Bascomb’s arrest, the court concluded that the
presence of the gun in the van with the crack‐laden purse supported the application of
§ 2K2.1(b)(6). Once more the court sentenced Bascomb to 110 months.
In his Anders brief counsel relates that he contemplated various grounds for appeal,
including potential claims about the validity of Bascomb’s guilty plea and the application of
No. 10‐3983 Page 3
sentencing guidelines other than § 2K2.1(b)(6). Most of that discussion was unnecessary,
however, because this appeal is limited in scope. Arguments that were made or could have
been made in the previous appeal cannot be raised now, United States v. Swanson,
483 F.3d
509, 514–15 (7th Cir. 2007); United States v. Sumner,
325 F.3d 884, 891–92 (7th Cir. 2003);
United States v. Husband,
312 F.3d 247, 250–51 (7th Cir. 2002), so this appeal would be
confined to claims about the district court’s renewed application of § 2K2.1(b)(6) and the
reasonableness of the sentence imposed on remand.
Counsel addresses both possibilities. As to § 2K2.1(b)(6), the district court based the
adjustment on the fact that the gun was found near a stash of packaged crack that Bascomb
admitted he owned and was selling, and given these uncontested facts we agree with
counsel that it would be frivolous to challenge the adjustment. We construe expansively the
phrase “in connection with” in § 2K2.1(b)(6), see United States v. Waagner,
319 F.3d 962, 966
(7th Cir. 2003); United States v. Wyatt,
102 F.3d 241, 247 (7th Cir. 1996), and the adjustment
applies when a gun is found in “close proximity” to drugs because the “presence of the
firearm has the potential of facilitating another felony offense,” U.S.S.G. § 2K2.1 cmt.
n.14(B)(ii); see United States v. Waltower,
643 F.3d 572, 578 (7th Cir. 2011); United States v.
Bryant,
420 F.3d 652, 657 (7th Cir. 2005). Here, Bascomb’s gun was near the drug‐filled
purse; he admitted that the drugs were his; and he admitted to selling cocaine. On these
facts, the court reasonably inferred that Bascomb possessed the gun, an archetypal tool of
the gun trade, in connection with his drug‐trafficking activity. See United States v. Meece,
580
F.3d 616, 621 (7th Cir. 2009); Bryant,
420 F.3d at 657; Wyatt,
102 F.3d at 248.
Counsel has not identified any potential procedural error in the district court’s
assessment of an appropriate sentence. See Gall v. United States,
552 U.S. 38, 51 (2007). Nor
has counsel identified any reason to disregard the presumption of reasonableness applicable
to Bascomb’s prison sentence, which is at the bottom of the guidelines range. See Rita v.
United States,
551 U.S. 338, 347 (2007); United States v. Pape,
601 F.3d 743, 746 (7th Cir. 2010).
The court treated the guidelines as advisory and evaluated the factors in
18 U.S.C. § 3553(a),
including the seriousness of the offense, Bascomb’s background and characteristics, his
criminal history, the need to promote respect for the law and provide just punishment, and
the need to deter others and protect the public. The court then imposed a sentence at the
low end of the range. In light of the court’s analysis, we agree with counsel that any
challenge to Bascomb’s sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
