United States v. Frank Billups , 632 F. App'x 296 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 3, 2016
Decided February 3, 2016
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-2157
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 14-cr-40030-001
FRANK D. BILLUPS, Sara Darrow,
Defendant-Appellant. Judge.
ORDER
Frank Billups was paroled after serving three years in state prison for armed
robbery. Eight days after his release he was arrested again, this time for possessing a
gun. Billups, who was eighteen years old at the time, had been riding with friends in a
car that police were following. The car came to an abrupt stop, and both Billups and the
driver fled. Officers quickly caught them, and one of the officers retraced Billups’s steps
and found a loaded revolver with a partially obliterated serial number lying on top of
freshly fallen snow. At the scene Billups denied possessing the gun, but ultimately he
pleaded guilty in federal court to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).
The district court sentenced him to 57 months’ imprisonment, the bottom of the
guidelines range, and 2 years’ supervised release.
No. 15-2157 Page 2
Billups has filed a notice of appeal, but his newly appointed lawyer asserts that
the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744
(1967). Counsel has submitted a brief that explains the nature of the case and addresses
potential issues that an appeal of this kind might be expected to involve. We invited
Billups to comment on counsel’s motion, but he has not done so. See CIR. R. 51(b).
Because the analysis in the brief appears to be thorough, we focus our review on 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).
In her Anders brief, counsel asserts that Billups does not wish to challenge his
guilty plea, and thus she appropriately refrains from discussing the adequacy of the plea
colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the plea. 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).
Counsel advises that she reviewed the district court’s application of the
sentencing guidelines, including the court’s decision to deny Billups’s request for a
downward adjustment based on defense counsel’s assertion that the defendant played a
minor role in his possession of the gun. See U.S.S.G. § 3B1.2. At sentencing Billups’s
former lawyer had represented that the driver of the car foisted the gun on the defendant
just as the car braked to a stop. But new counsel asserts that an appellate claim based on
that scenario would be frivolous because, she says, a defendant cannot have a minor role
in his own possession of a firearm, and thus cannot be eligible for a reduction under
§ 3B1.2.
We agree with counsel that a claim about Billups’s role in the offense would be
frivolous, but not for the reason she gives. Counsel reads United States v. Thompson, 990
F.2d 301, 303–04 (7th Cir. 1993), for the proposition that, as a matter of law, a defendant
convicted of violating § 922(g)(1) cannot be a minor participant in the offense. We
rejected that reading of Thompson in United States v. Hill, 563 F.3d 572, 577–78 & 578 n.1
(7th Cir. 2009), and, indeed, the district court correctly recognized that in an appropriate
case a defendant convicted of violating § 922(g)(1) might be eligible for the reduction.
Rather, an appellate claim would be frivolous for the principal reason given by
the district court: Billups is the only known participant in his offense because no
evidence supports his lawyer’s assertion that the driver shoved the gun into the
defendant’s hand immediately before the pair abandoned the car and ran from the
No. 15-2157 Page 3
police. Billups did not testify or present other evidence that the driver had given him the
gun, and what a defendant’s lawyer says is not evidence. See United States v. Chapman,
694 F.3d 908, 914 (7th Cir. 2012); United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008).
Moreover, even if the driver was the source of the gun, that would not make the district
court’s application of § 3B1.1 clearly erroneous. As the court noted, Billups had been
with the driver a few days earlier when police found a different gun in the driver’s car,
and thus the defendant was on notice that the driver carried guns. Moreover, before
fleeing the car Billups had taken active control of the gun, even if the weapon did
originate with the driver.
Counsel also considers whether Billups could challenge the substantive
reasonableness of his prison sentence, but properly concludes that such a challenge
would be frivolous. The 57-month term is within the guidelines range of 57 to 71 months
and thus is presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Fletcher, 763 F.3d 711, 715 (7th Cir. 2014). Counsel has not identified
anything in the record rebutting that presumption, nor have we. The district court
considered the sentencing factors in 18 U.S.C. § 3553(a), including Billups’s youth and
family support, both of which the court thought pointed toward the possibility of
rehabilitation. But the court also believed that a lengthy prison sentence was needed to
promote respect for the law and protect the public, given the seriousness of Billups’s
offense—fleeing from police and leaving a loaded gun on the ground—as well as
Billups’s significant criminal history starting at age twelve. The court also considered the
need to minimize the risk of disparity between the sentences of Billups and the driver,
who also was convicted of violating § 922(g)(1) based on the gun he possessed a few
days before Billups was arrested. The court concluded that a longer sentence was
warranted for Billups because of his criminal history.
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.