United States v. Sutton, Byron

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2006
Decided November 27, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN C. WILLIAMS, Circuit Judge
No. 05-4610
UNITED STATES OF AMERICA, ] Appeal from the United
] States District Court for
Plaintiff-Appellee, ] the Northern District of
] Illinois, Eastern Division
]
v. ] No. 02 CR 1131
]
]
BYRON SUTTON, ]
] Elaine E. Bucklo,
Defendant-Appellant. ] Judge.
ORDER
Byron Sutton pled guilty to separate indictments charging him with two counts of
distributing over 50 grams of crack in violation of 21 U.S.C. § 841(a)(1), and one count of
conspiring to distribute crack in contravention of 21 U.S.C. §§ 846 & 841(a)(1). He appealed to
this court, arguing that the district court erred in determining the weight of the drugs, that the
district court violated his Sixth Amendment rights in increasing his sentence based on facts
neither admitted nor proven to a jury beyond a reasonable doubt, and that there was a conflict
between the district court’s oral pronouncement of sentence and the written judgment such that
No. 05-4610 2
the order that he repay $2500 to the government as a condition of supervised release appeared to
be set forth as an order of restitution in the written judgment. In United States v. Sutton, 406
F.3d 472 (7th Cir. 2005), we rejected the challenge to the drug weight and the contention that the
$2500 was characterized as restitution in the judgment, but held that a limited Paladino remand
was necessary in order for the court to determine whether it would have imposed the same
sentence had it known that the Sentencing Guidelines were not mandatory. See United States v.
Paladino, 401 F.3d 471(7th Cir. 2005). The court responded that it could not conclude that it
would have imposed the same sentence, and the case was remanded for resentencing.
The district court then imposed the statutory mandatory minimum sentence for the
offenses to which Sutton pled guilty, with those sentences to run concurrently. Counsel for
Sutton on appeal now moves to withdraw because he cannot discern a nonfrivolous basis for
appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Sutton has responded with his own
brief. See Cir. R. 51(b). Counsel’s supporting brief is facially adequate, so we limit our review
to the issues identified by counsel and those raised by Sutton. United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
We agree that there are no nonfrivolous issues for appeal. Counsel for Sutton raises two
potential issues. First, he argues that Sutton’s offense level should not have been 34 because the
trial court erred in concluding that his conduct involved crack cocaine instead of powder
cocaine. This argument could have been, but was not, raised on the initial appeal, when Sutton
challenged the offense level arguing that the court erred in determining drug quantity. Even if
we were to consider it, however, it is without merit. Sutton pled guilty to knowingly and
intentionally distributing a mixture containing cocaine base commonly referred to as crack.
Moreover, in his testimony at the plea hearing, he admitted that the transactions involved crack
cocaine. Although he also discusses the sale of powder cocaine, that was consistent with the
government’s recitation of facts that it would prove at trial, which consisted of crack cocaine
transactions as well as powder cocaine transactions. The crack cocaine transactions form the
basis for the guilty pleas in this case, and there is no conflict in the record as to the presence of
crack cocaine as opposed to powder cocaine. Accordingly, there is no nonfrivolous basis to
appeal the offense level.
The second issue raised by counsel for Sutton is whether trial counsel rendered
ineffective assistance in failing to argue that the 120-month sentence was unconstitutional
because of the significant disparity between the base offense levels for crack cocaine and powder
cocaine. We generally do not consider ineffective assistance claims on direct appeal, as they
often involve facts outside the record that cannot be developed on direct appeal. This discrete
issue, however, is a purely legal one. The argument as to the constitutionality of the disparity
between crack cocaine sentences and powder cocaine sentences has long been rejected. See
United States v. Westbrook, 125 F.3d 996, 1010 (7th Cir. 1997) (noting that “[s]ince our first
consideration of the issue in United States v. Lawrence, 951 F.2d 751, 753-56 (7th Cir. 1991),
this court has consistently held that the disparity of the penalty structure imposed by the
Guidelines between cocaine base and cocaine powder is constitutional.”); United States v.
No. 05-4610 3
Miller, 450 F.3d 270, 275 (7th Cir. 2006) (upholding relevance of the disparity post-Booker). It
is not ineffective assistance to fail to raise a futile argument.
Accordingly, we agree with counsel for Sutton that the proposed issues for appeal have
no merit. Sutton has added a few issues for this court’s consideration. First, he argues that the
district court erred in ordering restitution. This restitution argument was already rejected by this
court on the direct appeal, and therefore it would be frivolous to raise it again. See United States
v. Sutton, 406 F.3d 472, 475-76 (7th Cir. 2005) (holding that Sutton misreads the judgment in
characterizing it as a restitution order, and that the language makes clear the $2500 was to be
repaid as a condition of supervised release). Sutton further argues that counsel on appeal failed
to identify appealable issues generally, pointing to the restitution issue as an example. We have
already held that the restitution issue is frivolous. There are no apparent meritorious issues for
appeal. Sutton pled guilty to the charges, and in the plea hearing he acknowledged that the
statutory mandatory minimum sentence for the offenses was 120 months. That is the sentence he
received, and the sentences were to run concurrently. Sutton has never attempted to withdraw
that guilty plea, and he received the lowest possible sentence under the statute. The district court
was without discretion to sentence below the mandatory statutory minimum, and there is no
nonfrivolous challenge as to the imposition of that sentence. See generally United States v.
Jones, 418 F.3d 726, 730-32 (7th Cir. 2005). As there are no nonfrivolous issues for appeal, the
motion to withdraw is granted and the appeal is dismissed.