United States v. Raequon Allen ( 2019 )

NONPRECEDENTIAL DISPOSITION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 6, 2019
Decided February 6, 2019
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
Nos. 17-3456 & 17-3525
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 3:15 CR 00067-001
RAEQUON ALLEN, William M. Conley,
Defendant-Appellant. Judge.
ORDER
This is Raequon Allen’s second appeal of his sentence for committing a Hobbs
Act robbery, 18 U.S.C. § 1951(a), and for brandishing a firearm during that crime, id.
§ 924(c)(1)(A)(ii). In his first appeal, we affirmed Allen’s convictions but vacated his
120-month prison sentence, remanding so that the district court could consider
mitigating the sentence for the robbery in light of the mandatory, consecutive 84-month
sentence under § 924(c). 702 F. App’x 457 (7th Cir. 2017); see Dean v. United States, 137
S. Ct. 1170, 1178 (2017). At resentencing, the district court reduced the robbery sentence
by one year, for a total prison term of 108 months. When the district court asked about
the proposed conditions of supervised release, Allen responded that he “[didn’t] have
any objections to them.” Allen timely appealed the sentence. He then moved for a new
Nos. 17-3456 & 17-3525 Page 2
resentencing hearing in the district court, arguing that the same judge should not have
conducted both sentencing hearings. He separately appealed the denial of that motion.
Allen’s appointed attorney asserts that the now-consolidated appeals are
frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s
brief explains the nature of the case and, for the most part, addresses the issues that an
appeal of this kind might be expected to involve. It does not address Allen’s appeal
from the denial of his motion for a new resentencing hearing. But we need not reject the
Anders brief on this basis because we are convinced that Allen could not raise any
non-frivolous challenge to this denial. It is standard practice for the sentencing judge to
conduct any resentencing hearing also, except in certain circumstances not applicable
here. See, e.g., United States v. Diaz-Jimenez, 622 F.3d 692, 694 (7th Cir. 2010). Further, we
remanded precisely to allow the same sentencing judge to determine whether he would
have imposed a lower overall sentence in light of Dean. See 702 F. App’x at 459; see also
United States v. Cureton, 882 F.3d 714, 716 (7th Cir. 2018). In all other respects, counsel’s
brief appears to be an adequate effort to determine whether Allen has any non-frivolous
grounds for appeal. Therefore, we limit our review to the subjects that counsel
identified along with those that Allen, disagreeing with counsel, believes have merit.
See CIR. R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first explores whether Allen could argue that the district court did not
comply with Dean on remand. But, as counsel concludes, doing so would be frivolous.
The court expressly considered its discretion under Dean to account for the mandatory
consecutive sentence in § 924(c) when determining the sentence for the predicate crime.
It then exercised that discretion to reduce Allen’s robbery sentence by twelve months.
Next, counsel correctly recognizes that any challenge to the reasonableness of
Allen’s sentence would be pointless. Allen’s 108-month sentence is within the properly
calculated guidelines range, so we would presume it to be reasonable. See Rita v.
United States, 551 U.S. 338, 347–51 (2007); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). And, like counsel, we see no basis in the record upon which Allen could
overcome that presumption.
Counsel also explores whether Allen could challenge the conditions of his
supervised release, but rightly concludes that Allen waived any such argument at the
resentencing hearing by expressly stating that he did not object to the conditions.
See United States v. Gabriel, 831 F.3d 811, 814 (7th Cir. 2016).
Nos. 17-3456 & 17-3525 Page 3
In his Rule 51(b) response, Allen raises an argument that counsel did not
consider: he challenges the constitutionality of his firearm conviction in light of Sessions
v. Dimaya, 138 S. Ct. 1204 (2018), which was decided after his resentencing hearing.
Because Dimaya struck down the definition of a “crime of violence” in 18 U.S.C. § 16(b)
as unconstitutionally vague, see 138 S. Ct. at 1215–16, Allen contends that the similarly
worded definition in § 924(c)(3)(B) also must be void for vagueness. But raising this
argument would be frivolous because, as this court stated in resolving Allen’s first
appeal, a Hobbs Act robbery is a “crime of violence” under the elements clause found in
§ 924(c)(3)(A). See 702 F. App’x at 459; see also United States v. Fox, 878 F.3d 574, 579 (7th
Cir. 2017), cert. denied, 138 S. Ct. 1603 (2018), reh'g denied, 138 S. Ct. 2617 (2018). At most,
Dimaya bears on the constitutionality of the residual clause, 18 U.S.C. § 924(c)(3)(B),
which does not apply in Allen’s case and thus does not impact his conviction.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.