United States v. Hampton, Timothy

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005
Decided May 10, 2005
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-3887
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03-CR-368-1
TIMOTHY HAMPTON,
Defendant-Appellant. Robert W. Gettleman
Judge.
ORDER
Timothy Hampton pleaded guilty to one count of distributing more than 50
grams of crack, 21 U.S.C. § 841(a)(1), and was sentenced to 120 months' imprisonment
and five years' supervised release. His appointed appellate attorney filed a notice of
appeal but now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967),
because he is unable to find a nonfrivolous issue for appeal. Hampton was notified of
counsel’s motion, see Cir. R. 51(b), but has not filed a response. We limit our review
of the record to those potential issues identified in counsel's facially adequate brief, see
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997), and because we conclude that
the possible argument discussed by counsel is frivolous, we grant his motion to
withdraw and dismiss Hampton’s appeal.
Hampton was arrested after he sold crack to informants working with the DEA
and FBI. Count two of the indictment related to an incident in November 2002, when
Hampton agreed to sell an informant 2.25 ounces of crack for $1,500. Hampton told the
No. 04-3887 Page 2
informant that he still had to “cook” the cocaine into crack, and arranged another
meeting. The following day, Hampton and the DEA informant exchanged $1,500 in
cash for 63 grams of crack. He pleaded guilty to count two, and the probation officer
held him accountable for another drug transaction that occurred in March 2003, when
Hampton sold an FBI informant 141 grams of crack.
The district court adopted the probation officer’s guidelines calculations without
modification. As recounted in the presentence report, the distribution offense carried
a base offense level of 34 because the count of conviction and relevant conduct involved
the sale of approximately 200 grams of crack. See U.S.S.G. § 2D1.1(c)(3). Although
Hampton pleaded guilty only to the count charging him with distributing 63 grams of
crack, the 141 grams he sold in March was included as relevant conduct, see U.S.S.G.
§ 2D1.1, cmt. n.12. The probation officer recommended a three-level reduction for
acceptance of responsibility, see U.S.S.G. § 3E1.1, resulting in a total offense level of
31. Combined with Hampton’s criminal history category of II, the guidelines yielded
a range of 121 to 151 months imprisonment. Hampton’s 120-month term is one month
below the low end of that range, and the minimum allowed under 21 U.S.C.
§ 841(b)(1)(A)(iii).
Counsel has uncovered only one potential issue for appeal: whether Hampton
could challenge his sentence under Booker v. United States, 125 S.Ct. 738 (2005).
Counsel concludes that any argument under Booker would be frivolous because the
district court departed below the guideline range and instead sentenced him to the
statutory minimum. We agree with counsel that an argument under Booker would be
frivolous because there is no possibility that Hampton would be re-sentenced to a term
of imprisonment below the statutory minimum. See United States v. Paladino, 401
F.3d 471, 480, 482-83 (7th Cir. 2005) (remarking that where sentence is the statutory
minimum, “one can be certain that the judge would not have given a different sentence
even if he had realized that the guidelines were merely advisory”); United States v.
Lee, 399 F.3d 864, 866 (7th Cir. 2005) (“Nothing in Booker gives a judge any discretion
to disregard a mandatory minimum.”).
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.