NONPRECEDENTIAL DISPOSITION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 August 31, 2011
Decided September 2, 2011
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10‐2945
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. 04 CR 464‐9
JAMES STEWART, Elaine E. Bucklo,
Defendant‐Appellant. Judge.
O R D E R
James Stewart distributed large amounts of cocaine, heroin, and other controlled
substances as a high‐ranking member of the Black Disciples street gang. He pleaded guilty
to one count of conspiracy to possess with intent to distribute a controlled substance,
21
U.S.C. §§ 846, 841(a)(1), and one count of using a communication device to facilitate a
violation of federal drug laws, see
id. § 843(b). Stewart initially was sentenced to 292 months’
imprisonment; he appealed and argued that the district court had refused to consider his
contention that the different base offense levels for like amounts of crack and powder
cocaine was a mitigating factor that warranted a lower sentence. While that appeal was
pending, the Supreme Court decided Kimbrough v. United States,
552 U.S. 85 (2007), which
holds that a sentencing judge may conclude, even in a “mine‐run case,” that a term of
No. 10‐2945 Page 2
imprisonment falling within the range calculated using the base offense levels in U.S.S.G.
§ 2D1.1 would be too high. We remanded for resentencing in light of Kimbrough, see United
States v. White,
582 F.3d 787, 793 (7th Cir. 2009), and after recalculating the guidelines range
to take into account a postsentencing, retroactive amendment, see U.S.S.G. Supp. App. C,
226‐31 (2007) (“Amendment 706”), the district court sentenced Stewart within the revised
range to 239 months. Stewart filed a notice of appeal, but his appointed lawyer, unable to
identify an arguable issue to pursue, moves to withdraw. See Anders v. California,
386 U.S.
738, 744 (1967). Stewart has not accepted our invitation to respond to counsel’s facially
adequate submission. See CIR. R. 51(b).
Counsel correctly observes that this appeal is limited in scope. Arguments that were
made or could have been made in the last appeal cannot be raised here. See United States v.
Swanson,
483 F.3d 509, 514‐15 (7th Cir. 2007); United States v. Husband,
312 F.3d 247, 250‐51
(7th Cir. 2002), United States v. Sumner,
325 F.3d 884, 891‐92 (7th Cir. 2003). Counsel finds no
fault with the district court’s application of the retroactive amendment to the sentencing
guidelines, or to the court’s determination that this amendment reduced Stewart’s offense
level by two levels and lowered his imprisonment range to 235 to 293 months. The only
potential arguments, then, concern the procedural and substantive reasonableness of the
sentence imposed.
Counsel has considered those points but concludes that a reasonableness argument
would be frivolous. We agree. At resentencing the district court did as we directed and,
after hearing from counsel and Stewart, expressly considered Stewart’s assertion that a
below‐range sentence was appropriate due to the different sentencing ranges for crimes
involving like amounts of powder and crack cocaine. The district court was not persuaded
by that contention (or by Stewart’s other arguments in mitigation) and instead imposed a
sentence within the applicable range, and appellate counsel is unable to identify any reason
to disregard the presumption of reasonableness applicable to that within‐guidelines
sentence. See Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Pulley,
601 F.3d
660, 668 (7th Cir. 2010).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
