United States v. Crayton, Luella ( 2008 )

NONPRECEDENTIAL DISPOSITION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 January 18, 2008
Decided January 18, 2008
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-2862
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central
District of Illinois
v.
No. 06 CR 10100
LUELLA CRAYTON,
Defendant-Appellant. Michael H. Mihm,
Judge.
ORDER
Luella Crayton pleaded guilty to possessing crack for distribution in violation
of 21 U.S.C. § 841(a)(1). She admitted that the amount was at least 50 grams,
which because of her prior felony drug conviction triggered a mandatory minimum
penalty of 20 years’ imprisonment. See id. § 841(b)(1)(A)(iii). At sentencing the
district court began with a base offense level of 34, see U.S.S.G. § 2D1.1(c)(3), and
added two levels because police found two firearms in Crayton’s home, see id.
§ 2D1.1(b)(1). The court then subtracted three levels for acceptance of
responsibility. See id. § 3E1.1. The resulting total offense level of 33 combined with
Crayton’s criminal history category of I initially yielded an imprisonment range of
135 to 168 months, but that range was displaced by the statutory minimum. See id.
No. 07-2862 Page 2
§ 5G1.1(b). After considering the government’s motion for a sentence below that
minimum based on Crayton’s substantial assistance to authorities, see 18 U.S.C.
§ 3553(e); U.S.S.G. § 5K1.1, the court imposed a 215-month term as recommended
by the government. The court, however, concluded that it lacked discretion to grant
Crayton’s request for a further reduction below the statutory minimum for reasons
other than her substantial assistance.
Crayton appeals, but her appointed appellate lawyer has moved to withdraw
because she cannot discern any nonfrivolous argument to pursue. See Anders v.
California, 386 U.S. 738 (1967). Crayton was notified about counsel's motion, see
CIR. R. 51(b), and she responded by requesting the appointment of new counsel and
moving for a reduction in her sentence based on recent guidelines amendments that
lowered the offense levels for some crack offenses. Counsel’s supporting brief is
facially adequate, so we limit our review to the potential issue she identifies. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
In her plea agreement, Crayton promised to forgo any appeal of her
conviction or sentence, but after the issue arose concerning the district court’s
authority to further reduce Crayton’s sentence, the government agreed to modify
the appeal waiver to permit Crayton to challenge the court’s ruling. Except to that
extent, however, the appeal waiver, if valid, bars Crayton from challenging her
conviction or her sentence. An appeal waiver must be enforced if entered into as
part of a voluntary guilty plea. Nunez v. United States, 495 F.3d 544, 545 (7th Cir.
2007); United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997). And since
Crayton does not contest the voluntariness of her guilty plea, the waiver must stand
with the plea. See United States v. Nave, 302 F.3d 719, 721 (7th Cir. 2002); Woolley,
123 F.3d at 632. Accordingly, the waiver renders frivolous any argument on appeal
save the issue expressly excepted by the parties.
Counsel, addressing that question, considers whether Crayton could
challenge the district court’s belief that it lacked authority to further reduce her
sentence below the statutory minimum for reasons other than her substantial
assistance. Prior to United States v. Booker, 543 U.S. 220 (2005), we had held that
sentencing courts could not consider factors unrelated to a defendant’s substantial
assistance when deciding how far to depart below a statutory minimum in response
to a motion from the government under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.
See United States v. Crickon, 240 F.3d 652, 655 (7th Cir. 2001); United States v.
DeMaio, 28 F.3d 588, 591 (7th Cir. 1994). We have not revisited this issue since
Booker, but “a ground of appeal can be frivolous even if there is no case on point.”
United States v. Lopez-Flores, 275 F.3d 661, 662-63 (7th Cir. 2001). All other
circuits to address the question post-Booker have held that a district court, after
reducing a statutory minimum sentence based on substantial assistance under
§ 3553(e), may not further reduce that sentence based on unrelated factors set forth
No. 07-2862 Page 3
in 18 U.S.C. § 3553(a). See United States v. Mangaroo, 504 F.3d 1350, 1355-56
(11th Cir. 2007) (holding that extent of reduction from statutory minimum sentence
should be based solely on defendant’s assistance to law enforcement); United States
v. Williams, 474 F.3d 1130, 1132 (8th Cir. 2007) (holding that nothing in reasoning
of Booker expands district court’s authority to sentence below a statutory
minimum); United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006) (same). We
agree. Accordingly, counsel correctly concludes that pursuing this potential issue
would be frivolous.
Turning to Crayton’s motions, our conclusion that she lacks a nonfrivolous
argument to raise on appeal renders moot her request for new counsel. And her
motion for a reduced sentence in light of the recent, retroactive amendment to the
crack guidelines, see U.S.S.G. App. C, vol IV, amend. 706, pp 226-30, must be
directed to the district court. See 18 U.S.C. § 3582(c)(2); United States v. Lloyd, 398
F.3d 978, 979 (7th Cir. 2005). We therefore deny both motions.
Accordingly, counsel’s motion to withdraw is GRANTED. Crayton’s motions
are DENIED and the appeal is DISMISSED.