United States v. Brown, Delroy

NONPRECEDENTIAL DISPOSITION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 October 31, 2007
Decided November 14, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-4111
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 06-CR-114
DELROY BROWN,
Defendant-Appellant. William C. Griesbach,
Judge.
ORDER
Delroy Brown pleaded guilty to possessing MDMA (“ecstasy”) with intent to
distribute and illegally reentering the United States after removal. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C); 8 U.S.C. § 1326(a), (b)(2). The district court sentenced him to
188 months’ imprisonment, the bottom of the Sentencing Guidelines range. Brown
filed a notice of appeal, but his appointed counsel now moves to withdraw on the
ground that he cannot discern a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). Brown declined our invitation to comment on
counsel’s motion, see Cir. R. 51(b), and therefore our review is limited to the
potential issues raised by counsel in his facially adequate supporting brief, see
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 06-4111 Page 2
Counsel first considers whether Brown could challenge the voluntariness of
his guilty pleas. According to counsel’s brief, though, Brown does not wish to
withdraw his guilty pleas, so counsel appropriately does not pursue this argument
further. See United States v. Knox, 287 F.3d 667, 669-71 (7th Cir. 2002).
Counsel next considers whether Brown could challenge the reasonableness of
his sentence. See United States v. Booker, 543 U.S. 220, 260-63 (2005). We
presume that a sentence within the correctly calculated guidelines range is
reasonable. See Rita v. United States, 127 S.Ct. 2456, 2462-65 (2007) (holding that
“a court of appeals may apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentencing Guidelines”); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And the standard for
determining reasonableness is whether the district court provided a reasoned basis
for its sentence after considering the relevant sentencing factors found in 18 U.S.C.
§ 3553(a). See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006). Here, as
counsel notes, the district court correctly applied the guidelines, considered the
range of sentencing factors provided by 18 U.S.C. § 3553(a), and ultimately
sentenced Brown at the bottom of the guidelines imprisonment range of 188 to 235
months. The court observed that Brown had compiled a lengthy criminal record in
less than ten years in the United States; the frequency and severity of his crimes
“displayed a total disregard for the law” and thus warranted a sentence within, and
not below, the advisory guidelines range. Given the court’s careful deliberation at
sentencing, counsel cannot detect any reason to upset Mykytiuk’s presumption of
reasonableness in the present case, nor can we. See United States v. Gammicchia,
498 F.3d 467, 468-69 (7th Cir. 2007); United States v. Gama-Gonzalez, 469 F.3d
1109, 1110 (7th Cir. 2006) (“It will be the rare sentence indeed that was required
under the Guidelines before Booker but forbidden afterward, when discretion has
gone up rather than down.”) (emphasis in original); Mykytiuk, 415 F.3d at 608.
Counsel also considers whether Brown could argue that the district court
erred by classifying him as a career offender. Prior to sentencing, Brown objected to
his classification as a career offender on the grounds that his relevant prior
convictions were not charged in the indictment, proved to a trier of fact beyond a
reasonable doubt, or admitted in his guilty pleas, and therefore they could not
operate to increase his guidelines range without violating his rights under the Fifth
and Sixth Amendments. Yet Brown did admit to those convictions in his plea
agreement, a point that he conceded at the sentencing hearing. Regardless, a judge
may find the fact of a prior conviction when applying the guidelines, and prior
convictions need not be found beyond a reasonable doubt for sentencing purposes.
Booker, 543 U.S. at 243-44; Almendarez-Torres v. United States, 523 U.S. 224, 239-
47 (1998); United States v. Spence, 450 F.3d 691, 696-97 (7th Cir. 2006); United
States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005); United States v. Washington,
417 F.3d 780, 788 (7th Cir. 2005). The constitutional problem that counsel
No. 06-4111 Page 3
identifies arises only “if judicial factfinding [other than the fact of a prior conviction]
results in a sentence exceeding the statutory maximum, for example, or if such
factfinding requires a particular sentence in the context of a mandatory sentencing
guidelines scheme.” Bryant, 420 F.3d at 656; see Booker, 543 U.S. at 244 (“Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.”) (emphasis added). Counsel is correct that any argument to the contrary
would be frivolous.
Additionally, counsel considers whether Brown could challenge the district
court’s failure to specify a maximum number of drug tests when it imposed
participation in a drug and alcohol testing program as a condition of supervised
release. A court’s authority to compel drug testing upon supervised release is set
forth in 18 U.S.C. § 3583(d), which provides that the court alone must determine
the number of drug tests required of the defendant. See United States v. Bonanno,
146 F.3d 502, 511 (7th Cir. 1998). Failure to specify a maximum number of drug
tests can constitute error if the omission improperly delegates too much authority to
the probation office to direct the drug testing. Id. A defendant who does not object
at sentencing to the absence of a ceiling on drug testing, however, forfeits the error.
See United States v. Tejeda, 476 F.3d 471, 473-74 (7th Cir. 2007). Federal Rule of
Criminal Procedure 52(b) authorizes a court of appeals to correct a forfeited error so
long as it is a “plain error that affects substantial rights.” Fed. R. Crim. P. 52(b)
(emphasis added). But a court’s failure to specify a maximum number of drug tests
is not a plain error. Tejeda, 476 F.3d at 473-76. Because Brown did not object at
sentencing, we agree with counsel that it would be frivolous to raise the error on
appeal.
Finally, our review of the record revealed that at sentencing the district court
incorrectly relied on the 2005 Guidelines Manual eight days after the 2006
Guidelines Manual took effect. See U.S.S.G. § 1B1.11. But the two manuals are
identical with respect to Brown; under both, his final offense level was 31 and his
criminal history category VI, yielding an imprisonment range of 188 to 235 months.
Thus, any argument on this ground would be frivolous as well.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.