United States v. Edmond Green , 458 F. App'x 568 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 1, 2012
Decided February 2, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11-2661
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 11-40014-001
EDMOND T. GREEN, James E. Shadid,
Defendant-Appellant. Judge.
ORDER
Edmond Green pleaded guilty in 2010 to unlawful possession of a firearm by a
felon, see 18 U.S.C. § 922(g), and was sentenced to 63 months’ imprisonment. He filed a
notice of appeal, but his appointed counsel has moved to withdraw on the ground that all
potential appellate claims are frivolous. See Anders v. California, 386 U.S. 738 (1967). Green
has not responded to his lawyer’s submission. See C IR. R. 51(b). We limit our review to the
potential issues identified in counsel’s facially adequate brief. See United States v. Aslan, 644
F.3d 526, 531 (7th Cir. 2011).
Green does not want his guilty plea set aside, so counsel properly forgoes discussion
of the voluntariness of the plea or the district court’s compliance with Federal Rule of
Criminal Procedure 11. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
No. 11-2661 Page 2
Counsel first considers whether Green could argue that the district court erred by
increasing his offense level based on a conviction in 1997 under Illinois’s “look-alike”
statute, which punishes persons for distributing substances that resemble controlled
substances. See 720 ILCS 570/404(b). The district court—over Green’s objection—applied
U.S.S.G. § 2K2.1(a)(2), which assigns a base offense level of 24 to defendants who
“committed . . . the instant offense subsequent to sustaining at least two felony convictions
of either a crime of violence or a controlled substance offense.” Counsel had argued that
White’s conviction for distributing a “look-alike” substance did not qualify as a controlled-
substance offense, since it did not involve actual controlled substances.
We agree with counsel that any challenge to the court’s use of § 2K2.1(a)(2) to
establish White’s base offense level would be frivolous. We and at least four sister circuits
have rejected similar arguments involving the Illinois look-alike statute or other
comparable state statutes. See United States v. Brown, 638 F.3d 816, 819 (8th Cir. 2011) (Iowa
statute); United States v. Hudson, 618 F.3d 700, 703 (7th Cir 2010) (Indiana statute); United
States v. Mills, 485 F.3d 219, 224 (4th Cir. 2007) (Maryland statute); United States v. Robertson,
474 F.3d 538, 543 (8th Cir 2007) (Illinois statute); United States v. Crittenden, 372 F.3d 706,
708–09 (5th Cir. 2004) (Texas statute).
Counsel also considers whether Green could challenge the calculation of his
criminal history score. In 1997 Green received a four-year sentence for his look-alike
conviction. On the same day, he received a four-year sentence for revocation of his
probation (stemming from an armed-robbery conviction in 1996). At sentencing the district
court added three points to White’s criminal history for the controlled-substance conviction
and an additional three for the attempted armed robbery. Counsel had objected that,
because White had received his sentences for both the armed-robbery conviction and the
look-alike conviction on the same day, those crimes should count as only one “prior
sentence” for purposes of his criminal history calculation. See U.S.S.G. § 4A1.2(a)(2)(B). But
revocations are always counted separately from convictions in criminal history
calculations. See id. § 4A1.2(a)(2) cmt. n.11 (“If, however, at the time of revocation another
sentence was imposed for a new criminal conviction, that conviction would be counted
separately from the sentence imposed for the revocation.”); United States v. Eubanks, 593
F.3d 645, 654 (7th Cir. 2010). Any such challenge would therefore be frivolous.
Finally, counsel considers whether Green could challenge the reasonableness of his
sentence. But his 63-month sentence was within the guidelines (57 to 71 months based on a
total-offense level of 21 and a criminal history of IV), and a sentence within a properly
calculated range is presumed reasonable. Rita v. United States, 551 U.S. 338, 347 (2007);
No. 11-2661 Page 3
United States v. Nurek, 578 F.3d 618, 626 (7th Cir. 2009). Counsel has not identified any
ground to rebut this presumption, nor can we. In determining Green’s sentence, the district
court appropriately considered the factors in 18 U.S.C. § 3553(a), noting the seriousness of
Green’s crime and the need to protect society from violent drug dealers. We agree with
counsel that any challenge to the reasonableness of Green’s sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.