United States v. Reed, Kevin , 238 F. App'x 177 ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Argued May 29, 2007
Decided August 17, 2007
Before
Hon. William J. Bauer, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
Hon. Ann Claire Williams, Circuit Judge
Nos. 06-1884 and 06-2870
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 02 CR 236
KEVIN REED and ANTOINE HILL,
Defendants-Appellants. Elaine E. Bucklo,
Judge.
ORDER
This is the second effort by Kevin Reed and Antoine Hill to obtain relief from their
sentences for drug dealing. In their first appeal, we affirmed their convictions and
remanded for re-sentencing in accordance with United States v. Paladino, 401 F.3d
471, 481 (7th Cir. 2005). At their re-sentencing, the defendants raised certain
objections to the Guideline calculations for the first time. The district court
determined that the “law of the case” prevented it from revisiting the Guideline
determination and, after analyzing the § 3553(a) factors, sentenced Hill to 226 months’
imprisonment and Reed to 300 months’ imprisonment. Defendants appeal their
sentences, and we affirm.
In December 2000, the FBI and the Joliet Police Department, together with
several other agencies, conducted a narcotics investigation into a drug ring operating
Nos. 06-1884 and 06-2870 Page 2
in Joliet, Illinois. As a result of the investigation, Reed and Hill were charged with,
among other things, conspiracy to distribute and to possess with intent to distribute
in excess of five kilograms of cocaine and in excess of 50 grams of cocaine base. Reed,
who was the central figure in the conspiracy, pleaded guilty to the conspiracy charge.
Hill was convicted of conspiracy and two counts of using a telephone to facilitate the
conspiracy but was acquitted of a substantive count of possession with the intent to
distribute in excess of 500 grams of cocaine.
In their first appeal, Hill and Reed raised several issues regarding their sentences.
Hill claimed that his Sixth Amendment right to a jury trial was violated because his
sentence was based, in part, upon facts found by the judge rather than the jury. Reed
claimed that the district court improperly determined that the government’s proffer
letter encompassed his entire cooperation agreement and the district court failed to
remedy the prosecutor’s breached promise to seek a downward departure in his
sentence in exchange for his cooperation. Their final challenge, that their sentences
violated Booker, was successful. We remanded the case for re-sentencing in accordance
with Paladino.
At their re-sentencing, Hill and Reed asserted new challenges to their sentences by
claiming that the district court improperly calculated their criminal history categories.
Hill also claimed that the district court improperly calculated his offense level. The
district court rejected defendants’ arguments, determining that the “law of the case”
prevented it from recalculating the Guideline range. Defendants timely filed this
appeal. Reed’s attorney has moved to withdraw under Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), because he cannot discern any
nonfrivolous ground for appeal. We invited Reed to respond to counsel’s motion, see
Cir. R. 51(b), and he has done so. Thus, in regard to Reed, we confine our review of the
record to the potential issues raised in Reed’s attorney’s facially-adequate brief and
Reed’s Rule 51(b) response.
We review de novo whether an issue is the law of the case. See Moore v. Anderson,
222 F.3d 280, 283 (7th Cir. 2000). The law-of-the-case doctrine requires a district court
to confine its discussion to the issues remanded, and bars the district court from
addressing issues that could have been raised on appeal. See United States v. Morris,
259 F.3d 894, 898 (7th Cir. 2001). “[A]ny issue conclusively decided by this court on
the first appeal is not remanded.” United States v. Husband, 312 F.3d 247, 251 (7th
Cir. 2002). Additionally, the court’s silence on an issue implies that it is not available
for consideration on remand. Id.In their original appeal, Hill and Reed failed to challenge the individual sentencing
calculations made by the district court. The law of the case prevented them from
raising these new issues at their re-sentencing because they were outside the scope of
the remand. See United States v. Buckley, 251 F.3d 668 (7th Cir. 2001) (rejecting
Nos. 06-1884 and 06-2870 Page 3
defendant’s argument that the district court erred by refusing to consider at sentencing
argument on remand which was not raised in the initial appeal), United States v.
Sumner, 325 F.3d 884 (7th Cir. 2003) (same). The district court properly found that
it could not reevaluate the new issues.
For the foregoing reasons, we AFFIRM the judgment of the district court.