United States v. Brown, Anthony , 254 F. App'x 548 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United
To be citedStates Court
only in accordance of R.Appeals
with Fed. App. P.
32.1Not to be cited per Circuit Rule 53
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 11, 2007∗
Decided November 8, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-2739
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Northern District of Illinois,
Eastern Division.
v.
No. 03 CR 886
ANTHONY BROWN, Harry D. Leinenweber,
Defendant-Appellant. Judge.
Order
This is the fourth appellate proceeding in the criminal prosecution of
Anthony Brown. The first time the case was here, we affirmed his conviction but
directed the district court to state whether the recent decision in United States v.
Booker, 543 U.S. 220 (2005), could affect Brown’s sentence. See United States v.
∗ This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-2739 Page 2
Gougis, 432 F.3d 735 (7th Cir. 2005). The district court replied that it would have
given Brown a lower sentence had it anticipated Booker’s holding. We then
remanded for resentencing. Instead of conducting a sentencing using the rules
prescribed by Fed. R. Crim. P. 32, however, the district court summarily imposed a
new sentence without giving Brown an opportunity to address the court or argue for
a lower sentence. On a fresh appeal, we reversed and remanded for a proper
resentencing by a different judge. This time, Rule 32 was followed, and Brown
received a sentence of 85 months’ imprisonment. (Brown’s original sentence was 97
months, and the first remand led to a 92-month sentence.) Brown has filed another
appeal; his counsel moves to withdraw and has filed a brief complying with Anders
v. California, 386 U.S. 264 (1967).
Brown, who opposes counsel’s motion in a filing under Circuit Rule 51(b),
contends that the district judge miscalculated the Guideline range by holding him
accountable for a firearm. This finding by the district court is what created a
potential problem under Booker, but as counsel observes in the Anders brief the
initial appeal raised only a Booker point, and not any contention that the evidence
was insufficient or that the Guidelines had been misapplied. It is too late to raise
such an argument now, counsel concludes, because its omission from the initial
appeal forfeits the point. See, e.g., United States v. Swanson, 483 F.3d 509, 514-15
(7th Cir. 2007). A remand for resentencing leaves open only those issues that led to
the remand. This remand was designed to give the district court an opportunity to
exercise discretion to the extent that Booker allows, and after affording counsel a
chance to argue for a lower sentence--and Brown himself a new opportunity for
allocation. The remand was not designed to reopen other issues. Any argument to
the contrary would be frivolous, as counsel properly concludes.
Brown’s response shows that he is confused by the idea of a remand. He says,
rightly, that the remand was “full” in the sense that resentencing had to comply
with Rule 32. But he is mistaken to think that this relieves him of his own litigating
strategy and reopens issues otherwise covered by forfeitures or the law of the case.
What is more, Brown does not offer any reason to suppose that the district
judge acted incorrectly in holding him accountable for the firearm. All co-
conspirators are accountable for other persons’ acts within the scope of the criminal
venture. Pinkerton v. United States, 328 U.S. 640 (1946). Brown’s further argument
that he had “taken off his [own] firearm”--and that testimony to the contrary should
not have been believed--misunderstands how judges apply the Guidelines. In
resentencing Brown, the district judge accepted as true his assertion that he was
not armed at the time of the drug transaction that immediately preceded his arrest.
But the judge also, and properly, concluded that the presence of weapons within the
reach of the conspirators required Brown’s offense level to be increased by two
under U.S.S.G. §2D1.1(b)(1). The question is not whether the weapon was being
carried in Brown’s pocket or waistband (or in the hands of another co-conspirator)
but whether it was “present” at the scene of the transaction. See Application Note 3
to §2D1.1. Brown does not offer any reason to think that he has a non-frivolous
objection to the judge’s conclusion that a firearm was “present” at the scene.
Brown’s sentence is 12 months below the lowest point in the Guideline range.
No. 07-2739 Page 3
Any argument that the sentence is too high would be untenable.
The motion to withdraw is granted, and the appeal is dismissed as frivolous.