United States v. Mashica Spann , 682 F.3d 565 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3623
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ASHICA S PANN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-Cr-244—Rudolph T. Randa, Judge.
S UBMITTED M AY 2, 2012—D ECIDED M AY 29, 2012
Before R IPPLE, W ILLIAMS, and S YKES, Circuit Judges.
P ER C URIAM. While on probation for a state drug con-
viction, Mashica Spann met Carlos Hoffman in court-
mandated group therapy and joined his heroin-distribu-
tion ring. She was indicted in federal court for her role
in the operation and pleaded guilty to conspiracy to dis-
tribute heroin, see 21 U.S.C. §§ 846, 841(a)(1), a crime
that presumptively mandated a minimum prison term of
five years because the conspiracy involved 100 or more
grams, id. § 841(b)(1)(B). After rejecting Spann’s argument
2 No. 11-3623
that she was a minimal or minor participant in the
crime, see U.S.S.G. § 3B1.2, the district court calculated her
guidelines imprisonment range as 57 to 71 months
without the mandatory minimum, which made the ap-
plicable range 60 to 71 months, see U.S.S.G. § 5G1.1(c)(2);
United States v. Gonzalez, 534 F.3d 613, 615 (7th Cir. 2008).
But the government moved for a sentence below the
mandatory minimum, citing Spann’s substantial assist-
ance in the investigation of Hoffman and others.
See 18 U.S.C. § 3553(e). The court granted the motion
and sentenced Spann to 24 months, less than half of the
mandatory minimum and more than a year below the
government’s most favorable recommendation.
Spann filed a notice of appeal, but her appointed
counsel has concluded that the appeal is frivolous and
seeks permission to withdraw. See Anders v. California, 386
U.S. 738 (1967). Spann has not accepted our invitation
to comment on counsel’s facially adequate submission.
See C IR. R. 51(b). We limit our review to the potential
issues that counsel discusses. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002). Spann does not want
her guilty plea set aside, so counsel properly forgoes
discussing the adequacy of the plea colloquy or the volun-
tariness of the plea. See United States v. Knox, 287 F.3d
667, 670-72 (7th Cir. 2002).
Counsel first considers arguing that the district court
undervalued Spann’s cooperation and did not shave
enough time from the statutory minimum. But valuing
substantial assistance given as part of a cooperation
agreement under 18 U.S.C. § 3553(e) is a matter within
the sentencing court’s discretion, and thus counsel
No. 11-3623 3
rightly concludes that an appellate claim challenging
the reduction as too little would be frivolous because
we lack jurisdiction to review the contention. See
18 U.S.C. § 3742(a); United States v. Thomas, 11 F.3d 732, 735
(7th Cir. 1993); United States v. Shaffer, 993 F.2d 625, 628-
29 (7th Cir. 1993); United States v. Dean, 908 F.2d 215, 217-
18 (7th Cir. 1990). Although these cases predate United
States v. Booker, 543 U.S. 220 (2005), we have explained
in discussing sentence reductions under Federal Rule
of Criminal Procedure 35(b) that Booker did not alter
our limited jurisdiction under 18 U.S.C. § 3742(a), which
is also the source of our jurisdiction here. See United
States v. McGee, 508 F.3d 442, 444-45 (7th Cir. 2007) (con-
cluding that challenging extent of sentence reduction
under Rule 35(b) would be frivolous); see also
United States v. Chapman, 532 F.3d 625, 628 (7th Cir.
2008); United States v. Parker, 543 F.3d 790, 792
(6th Cir. 2008); United States v. Haskins, 479 F.3d 955,
957 (8th Cir. 2007); United States v. McKnight, 448 F.3d
237, 238 (3d Cir. 2006). We see no principled basis to
distinguish sentence reductions given under Rule 35(b)
from those given under § 3553(e), so we would
conclude that we lack jurisdiction over a claim that
the district court should have been more generous in
rewarding Spann for her cooperation.1
1
We express no opinion on whether we similarly would
lack jurisdiction over an appellate claim that a district court
undervalued a defendant’s cooperation in granting a motion
under U.S.S.G. § 5K1.1 in a case in which the bottom of the
guidelines imprisonment range was not set by a statutory
(continued...)
4 No. 11-3623
Counsel next considers arguing that the district court
erred in rejecting Spann’s contention that she was a
minor or minimal participant in the conspiracy.
See U.S.S.G. § 3B1.2. Though the court might have dis-
cussed this guidelines question more extensively, we
agree with counsel that a challenge to the adverse
ruling would be frivolous. When relying on § 3553(e) as
authority to sentence a defendant below a mandatory
minimum, a district court may not reduce the sentence
based on factors other than the defendant’s coopera-
tion. E.g., United States v. Johnson, 580 F.3d 666, 672-73
(7th Cir. 2009); United States v. Winebarger, 664 F.3d 388,
396 (3d Cir. 2011); United States v. Jackson, 577 F.3d 1032,
1036 (9th Cir. 2009); United States v. Burns, 577 F.3d 887,
894 (8th Cir. 2009) (en banc). The bottom of Spann’s
guidelines imprisonment range ultimately was deter-
mined by the statutory minimum penalty, see U.S.S.G.
§ 5G1.1(c)(2); Gonzalez, 534 F.3d at 615; United States v.
Tyler, 125 F.3d 1119, 1120 (7th Cir. 1997). Any possible
error in not applying § 3B1.2 was necessarily harmless
because the court sentenced below the mandatory mini-
mum, and any reduction below that minimum had to be
based on cooperation alone.
1
(...continued)
minimum. Compare United States v. Anonymous Defendant, 629
F.3d 68, 73-75 (1st Cir. 2010) (concluding that, post-Booker,
appeals courts have jurisdiction over such claims), with
United States v. Berni, 439 F.3d 990, 992-93 (8th Cir. 2006)
(reaching opposite conclusion, though examining district
court’s assessment of defendant’s cooperation as part of
review of sentence’s reasonableness).
No. 11-3623 5
Counsel last considers whether Spann could challenge
the substantive reasonableness of her prison sentence
but correctly concludes that such a challenge would be
frivolous. As we have explained, Spann’s sentence falls
below the statutory minimum, and we have no authority
to consider whether the district court should have
deviated further from that minimum to reflect Spann’s
cooperation. Moreover, the district court could not
have deviated further from the minimum based on an
analysis of the factors set forth in 18 U.S.C. § 3553(a).
We thus would have no basis to assail the reasonable-
ness of the sentence.
Accordingly, counsel’s motion to withdraw is
G RANTED , and the appeal is D ISMISSED.
5-29-12