NONPRECEDENTIAL DISPOSITION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 December 22, 2010
Decided December 23, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐1177
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:07 cr 47‐017
DEMOND HARDIMON,
Defendant‐Appellant. Philip P. Simon,
Chief Judge.
O R D E R
A jury convicted Demond Hardimon of conspiring to distribute more than one
kilogram of heroin, see
21 U.S.C. §§ 841(a)(1), 846. The district court initially found that
Hardimon had a prior state felony drug conviction and sentenced him to the 20‐year
mandatory minimum, see § 841(b). We upheld Hardimon’s conviction, but vacated his
sentence and remanded so that the district court could determine whether Hardimon
qualified for the 20‐year mandatory minimum in light of ambiguity over his continued
participation in the conspiracy after his state drug conviction. See United States v. Hardimon,
No. 08‐2962, 329 F. App’x 660, 666 (7th Cir. May 14, 2009). On remand the government
conceded that it could not prove Hardimon’s continued participation, and the judge
resentenced Hardimon to 135 months’ imprisonment. Hardimon appeals once again, but
No. 10‐1177 Page 2
counsel contends that this appeal is frivolous, and moves to withdraw under Anders v.
California,
386 U.S. 738 (1967). Hardimon opposes counsel’s motion. See CIR. R. 51(b). We
confine our review to the potential issues identified in counsel’s facially adequate brief and
Hardimon’s response. See United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002). We
agree with counsel that the potential issues are frivolous, grant his motion to withdraw, and
dismiss the appeal.
Counsel considers challenging Hardimon’s sentence as unreasonable, but properly
concludes that any such challenge would be frivolous. We would presume a sentence
within a properly calculated guidelines range to be reasonable, see Rita v. United States,
551
U.S. 338, 347 (2007), and here the district court correctly assessed Hardimon’s total offense
level at 32 and his criminal history category at I, yielding a guidelines range of 121 to 151
months. Further, the court adequately justified the sentence, citing (among other factors)
the “massive” scale of the offense, Hardimon’s history of similar crimes, and the need for a
just punishment. See
18 U.S.C. § 3553(a); United States v. Moreno‐Padilla,
602 F.3d 802, 811‐12
(7th Cir. 2010).
For his part, Hardimon asserts that the district court erroneously calculated his base
offense level by including as “relevant conduct” heroin he sold after his state drug
conviction, despite the government’s concession that it could not establish his continued
participation in the conspiracy after that date. The judge held Hardimon responsible for
1,380 grams of heroin. Relevant conduct may be used to increase a sentence for a drug
trafficking crime if it is “part of the same course of conduct or common scheme or plan as
the offense of conviction.” See U.S.S.G. §§ 1B1.3(a)(2), cmt. n.3, cmt. n.9; 2D1.1 cmt. n.12;
United States v. Araujo,
622 F.3d 854, 859‐60 (7th Cir. 2010); United States v. Perez,
581 F.3d
539, 545‐46 (7th Cir. 2009). It would be frivolous, however, to contest the district court’s
relevant‐conduct determination. The court found at sentencing that Hardimon continued to
sell the same drug (heroin) to the same individual (Foster) at regular intervals for at least
five months after his state conviction, and thus the judge could conclude that this behavior
was part of the same “course of conduct” as Hardimon’s offense of conviction. See § 1B1.3
cmt. n.9(B); United States v. Fouse,
578 F.3d 643, 653 (7th Cir. 2009).
Accordingly, Counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.
