United States v. Hughley, Reylander ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005
Decided September 30, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1477
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Evansville
v. Division.
REYLANDER HUGHLEY, No. 03 CR 30
Defendant-Appellant.
Richard L. Young,
Judge.
ORDER
Reylander Hughley pleaded guilty to possession with intent to distribute
more than 5 grams of cocaine base, see 21 U.S.C. § 841(a)(1), and was sentenced to
188 months’ imprisonment. Hughley filed a timely notice of appeal, but his
appointed counsel now moves to withdraw because he cannot discern a nonfrivolous
basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). Counsel’s
supporting brief is facially adequate, so we confine our review to the potential
issues counsel identifies, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002), and those proposed in Hughley’s response filed pursuant to Circuit
Rule 51(b).
No. 05-1477 Page 2
Hughley sold crack to an informant three times in as many weeks. The
informant then arranged a fourth transaction, and when Hughley showed up with
34 grams of crack, he was arrested. This attempted sale underlies Hughley’s
conviction, and as part of a plea agreement, the government dismissed four other
counts against him. The plea agreement includes a stipulation that Hughley
qualifies as a career offender, U.S.S.G. § 4B1.1, as well as a waiver of his right to
appeal his conviction or sentence so long as his sentence falls within the resulting
guidelines range. At sentencing, which occurred after the Supreme Court decided
United States v. Booker, 125 S.Ct. 738 (2005), the district court concluded that
Hughley is a career offender because of his five prior Indiana convictions for
“dealing” drugs. See IND. CODE § 11-12-3.7-3. Hughley’s career offender status
resulted in a guidelines range of 188 to 235 months’ incarceration, and the district
court imposed a sentence at the bottom of that range.
Counsel and Hughley propose to argue that the district court violated the
Sixth Amendment by “finding” that Hughley’s convictions for dealing drugs are
“controlled substance offenses” that trigger the career offender guideline. The
proposed argument is frivolous, among other reasons, because of the waiver of
appeal in Hughley’s plea agreement. Nothing in that agreement provides an
“escape hatch” allowing Hughley to avail himself of later changes in the law, and as
we held after counsel submitted his Anders brief, Booker does not invalidate the
parties’ bargain. See, e.g., United States v. Bownes, 405 F.3d 634, 636–37 (7th Cir.
2005); United States v. Roche, 415 F.3d 614, 617 (7th Cir. 2005); United States v.
Lockwood, 416 F.3d 604, 607 (7th Cir. 2005). Hughley’s appeal waiver also renders
frivolous counsel’s related suggestion that Hughley might argue that his 188-month
sentence is unreasonable. See Booker, 125 S.Ct. at 765.
Accordingly, we GRANT counsel's motion to withdraw and DISMISS this
appeal.