NONPRECEDENTIAL DISPOSITION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 June 23, 2010
Decided June 24, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 08‐3886 & 09‐2683
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 630
RANDALL BREWSTER and
KENDALL W. BREWSTER, Amy J. St. Eve,
Defendants‐Appellants. Judge.
O R D E R
Randall and Kendall Brewster both pleaded guilty to their roles in a crack
distribution conspiracy. See
21 U.S.C. §§ 846, 841(a)(1). From 2004 to 2006, Randall
supplied powder cocaine and crack to a number of wholesale dealers, including Kendall,
who operated around “The Square,” a low‐income housing project on Chicago’s west side.
Randall fronted the powder cocaine and crack to the dealers, who would pay for the drugs
after selling them to individual users. Randall was sentenced to 300 months’ imprisonment
and Kendall to 312 months. Both filed notices of appeal, but their appointed lawyers have
separately asked to withdraw because they have determined that an appeal would be
frivolous. See Anders v. California,
386 U.S. 738 (1967). We invited both defendants to
respond to their counsel’s submissions, see CIR. R. 51(b), but only Randall submitted a
Nos. 08‐3886 & 09‐2683 Page 2
response. We limit our review to the issues considered in counsel’s facially adequate
supporting briefs and Randall’s response. See United States v. Schuh,
289 F.3d 968, 973‐74
(7th Cir. 2002).
Counsel tell us that neither defendant wants his guilty plea vacated, and so they
properly omit any discussion of the adequacy of the plea colloquies or the voluntariness of
the pleas. See United States v. Knox,
287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel for both Randall and Kendall question whether they could contest the
district court’s findings of relevant conduct. In Randall’s case, the district court included as
relevant conduct certain uncharged drug deals and a gun sale that were described by a
witness and recorded in phone calls. As a result of the court’s relevant conduct finding,
Randall’s base offense level was raised four levels. In Kendall’s case, the court considered
his indictment in another case (involving Randall and 54 other codefendants) to conspire to
sell drugs at The Square. In this case Kendall admitted dealing about 70 grams of crack, but
the court considered relevant his admissions in the other case that he distributed 469 grams
of crack and 224 grams of heroin. Relevant conduct may be used to increase a sentence if it
is part of the same course of conduct as the charged offense or part of a common scheme or
plan. U.S.S.G. § 1B1.3; United States v. Pira,
535 F.3d 724, 728 (7th Cir.), cert. denied,
129 S. Ct.
583 (2008). Offenses are considered part of a common scheme if they involve “common
victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G.
§ 1B1.3 cmt. n.9; see United States v. Perez,
581 F.3d 539, 545 (7th Cir. 2009). We agree with
counsel that it would be frivolous to argue that the district court clearly erred in finding
that the brothers’ relevant conduct included dealing the same type of drugs (crack cocaine),
in the same location (The Square), with the same accomplices. Moreover, Kendall agreed
with the government that his offense level should be set at 34 based on the amount of drugs
involved in the offense, so any argument he would make concerning his offense level
would be frivolous. See United States v. Sloan,
492 F.3d 884, 893 (7th Cir. 2007); United States
v. Newman,
148 F.3d 871, 878 (7th Cir. 1998).
Counsel for Randall next considers whether he could argue that the district court
incorrectly found him responsible for 2.4 kilograms of crack cocaine and 326 grams of
powder cocaine. We would review the district court’s findings as to drug quantity for clear
error. United States v. Wilson,
481 F.3d 475, 483 (7th Cir. 2007). But because there was
extensive evidence from wiretaps, FBI agents, and cooperating witnesses that Randall
obtained, processed, and distributed that amount of crack and cocaine powder, it would be
frivolous for Randall to argue that the court’s determination of quantity was clearly
erroneous.
Nos. 08‐3886 & 09‐2683 Page 3
Randall’s counsel next considers whether he might challenge the district court’s
finding that he possessed a firearm in connection with the offense (thereby increasing his
offense level by two). See U.S.S.G. § 2D1.1(b)(1); United States v. Orozco,
576 F.3d 745, 751‐52
(7th Cir. 2009), cert. denied,
130 S. Ct. 1313 (2010). But it would be frivolous for counsel to
contest the connection of Randall’s firearm possession to his drug dealing given that
recordings of wiretapped calls corroborated the account of a cooperating witness who
fingered Randall for not only selling him drugs but also brokering the sale of two firearms
to him.
In his response to counsel’s motion, Randall questions whether he might challenge
the district court’s criminal‐history calculation. Randall was convicted for possession of a
controlled substance in January 1995 and was sentenced to probation. Then a month later
he was arrested and ultimately convicted in December 1995 for possession with intent to
distribute. So on the same day in January 1996 he was sentenced to five years’
imprisonment on the possession‐with‐intent‐to‐distribute conviction, and his earlier
probation was revoked, resulting in a three‐year prison term. Randall suggests that the
imposition of these two terms on the same day means they should be grouped for criminal
history purposes, see U.S.S.G. § 4A1.2(a)(2), but the imprisonment on the January conviction
was actually a revocation of probation; revocations are always counted separately from
convictions in criminal history calculations. See id. cmt. n.11 (“If, however, at the time of
revocation another sentence was imposed for a new criminal conviction, that conviction
would be computed separately from the sentence imposed for the revocation.”); United
States v. Eubanks,
593 F.3d 645, 654‐55 (7th Cir. 2010). Moreover, “[p]rior sentences always
are counted separately if the sentences were imposed for offenses that were separated by an
intervening arrest,” U.S.S.G. § 4A1.2(a)(2), and Randall’s convictions were separated by his
arrest in February 1995.
Counsel for Kendall considers a challenge to the two‐level adjustment for Kendall’s
role in the offense as a manager. See U.S.S.G. § 3B1.1; United States v. Gonzalez‐Mendoza,
584
F.3d 726, 728‐29 (7th Cir. 2009). At sentencing Kendall argued that he did not deserve any
adjustment because he did not determine how much crack was sold, command a larger
share of the profits, or set the price. But the district court concluded, based on Kendall’s
own grand jury testimony, that he did supervise the retail sellers by deciding how much
drugs each seller would receive and then collecting the proceeds. Given this testimony, any
contention that this conclusion was clearly erroneous would be frivolous.
Counsel next considers whether Kendall might renew his argument that he should
have received an additional reduction in offense level for acceptance of responsibility (three
rather than two) because he pleaded guilty before trial. See U.S.S.G. § 3E1.1(b). The district
court refused to grant the further reduction because Kendall’s plea on the eve of trial did
Nos. 08‐3886 & 09‐2683 Page 4
not spare the government the effort of preparing for trial. But more critically, the further
reduction would be appropriate only if sought by the government, and here it was not.
See United States v. Deberry,
576 F.3d 708, 710 (7th Cir. 2009), cert. denied,
130 S. Ct. 2060
(2010). Any such challenge would therefore be frivolous.
Finally, both counsel consider whether either Randall or Kendall might challenge
the reasonableness of their sentences. But both defendants were sentenced within the
guidelines, and a sentence within a properly calculated range is presumed reasonable.
See Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Cano‐Rodriguez,
552 F.3d
637, 639 (7th Cir. 2009). In determining Randall’s sentence, the district court considered his
extensive criminal history, the substantial amount of crack cocaine that he distributed, and,
based on the recordings presented in the case, the presence of his children whenever he
cooked cocaine into crack. In determining Kendall’s sentence, the court considered his
extensive, violent criminal history, his classification as a recidivist, and his apparent lack of
remorse despite the repeated violence to protect his drug dealing activities. Because the
court meaningfully considered the § 3553(a) factors as they applied to each defendant, any
argument challenging their sentences would be frivolous. See, e.g., United States v.
Panaigua‐Verdugo,
537 F.3d 722, 727 (7th Cir. 2008).
Accordingly, counsel’s motions to withdraw are GRANTED and the appeals are
DISMISSED.
