United States v. Thomas, Norman ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2006
Decided December 22, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-1580
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 CR 889
NORMAN THOMAS,
Defendant-Appellant. Milton I. Shadur,
Judge.
ORDER
Norman Thomas pleaded guilty to conspiring to possess with intent to
distribute more than 50 grams of crack. See 21 U.S.C. §§ 846, 841(a)(1). In a
written plea agreement Thomas stipulated that the actual amount was between 500
grams and 1.5 kilograms of crack. The district court set his base offense level at 36,
see U.S.S.G. § 2D1.1(c)(2), and subtracted two levels under the “safety valve,” see 18
U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(9), 5C1.2, and three more for acceptance of
responsibility, see U.S.S.G. § 3E1.1. The resulting total of 31, combined with a
criminal history category of I, yielded a guidelines imprisonment range of 108 to
135 months. Thomas asked for a sentence below this range, arguing primarily that
the higher sentencing ranges for crack relative to powder cocaine are unfair. He
also cited personal factors including his record of steady employment, difficult
No. 06-1580 Page 2
childhood, and lack of recent criminal history (Thomas did have convictions that
were too old to be counted in his criminal history score). The district court
expressed sympathy for Thomas’s position but concluded on the basis of United
States v. Pho, 433 F.3d 53 (1st Cir. 2006), that its disagreement with Congress
about the severity of the crack guidelines could not justify a sentence below the
range. The court sentenced Thomas to 108 months in prison and five years of
supervised release. He appeals, but his appointed counsel moves to withdraw
under Anders v. California, 386 U.S. 738 (1967), because she cannot discern a non-
frivolous argument for appeal. We invited Thomas to respond, see Cir. Rule 51(b),
though he has not. Our review is limited to the potential issues identified in
counsel’s facially adequate brief. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997) (per curiam).
Thomas does not want his guilty plea set aside, so counsel correctly avoids
discussing the voluntariness of the plea or the adequacy of the plea colloquy. See
United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002). Instead she considers
whether Thomas could challenge his prison sentence as unreasonable. The chief
factor she mentions is the differential between sentences for like amounts of crack
and powder cocaine.
Thomas’s sentence is within the guidelines range and therefore is
presumptively reasonable. United States v. Gama-Gonzalez, No. 06-1965, 2006 WL
3490843, at *1 (7th Cir. Dec. 5, 2006); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). But even if we bypass that presumption, see United States v. Rita,
No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 127 S. Ct. 551
(U.S. Nov. 3, 2006) (No. 06-5754), we would agree with counsel that a
reasonableness argument built around the crack-to-powder ratio in the guidelines
would be frivolous. As the district judge recognized, sentencing courts are forbidden
from reducing a sentence simply because they disagree with the ratio. See United
States v. Jointer, 457 F.3d 682, 686-87 (7th Cir. 2006), petition for cert. filed, No. 06-
7600 (Oct. 27, 2006); United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006), cert.
denied, 75 USLW 3267 (Dec. 11, 2006); Pho, 433 F.3d at 63-65. We also agree with
counsel that it would be frivolous for Thomas to argue that his sentence is
unreasonable based on any of the other considerations he raised to the district
court. The court discussed almost all of the factors in 18 U.S.C. § 3553(a) and
determined that nothing called for a below-range sentence in this case.
The only other potential issue identified by counsel is whether Thomas could
challenge the district court’s refusal to strike from the presentence report
information about other arrests that did not lead to convictions. Thomas was
concerned that the Bureau of Prisons would use these arrests to give him a higher
security classification and deny him access to rehabilitative programs. But Thomas
would have no basis to challenge this decision because Fed. R. Crim. P.
No. 06-1580 Page 3
32(d)(2)(A)(i) requires that a defendant’s prior criminal record be included in the
presentence report. See also Office of Probation and Pretrial Services,
Administrative Office of the United States Courts, The Presentence Investigation
Report, Publication 107 III-18, 24 (2006) (instructing probation officers to report
arrests that do not lead to convictions in the criminal history section of the
presentence report). Thomas did not contest the accuracy of his arrest record; he
merely wanted it stricken so the Bureau of Prisons could not use it to decide his
classification in the prison system. See United States v. Beatty, 9 F.3d 686, 689 (8th
Cir. 1991) (sentencing court not required to strike from presentence report
information about defendant’s participation in murder for which he was never
arrested when defendant never challenged accuracy of information but simply
objected on grounds that information was irrelevant and would prejudice him in the
prison system).
For the above reasons we GRANT counsel’s motion and DISMISS the appeal.