United States v. James Harper ( 2009 )

NONPRECEDENTIAL DISPOSITION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 February 11, 2009∗
Decided February 24, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
DANIEL A. MANION, Circuit Judge
ANN C LAIRE WILLIAMS, Circuit Judge
No. 08-3302
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Western District of Wisconsin.
v. No. 05-CR-138-C-01
Barbara B. Crabb,
JAMES W. HARPER, Chief Judge.
Defendant-Appellant.
Order
James Harper was sentenced to 204 months’ imprisonment for crack-cocaine
offenses. Last year we remanded so that the district court could consider how to use the
discretion it possesses under Kimbrough v. United States, 128 S. Ct. 558 (2007). On
remand the judge reduced Harper’s sentence to 188 months. He has appealed a second
time, but his lawyer proposes to withdraw, concluding after an analysis under Anders v.
California, 386 U.S. 264 (1967), that there is no non-frivolous issue for appeal. Harper was
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 08-3302 Page 2
invited to respond, see Circuit Rule 51, but has not done so.
We agree with counsel that an appeal would be frivolous. Kimbrough holds that
district judges possess discretion to reduce sentences for crack cocaine, but that decision
and its successors, such as Spears v. United States, No. 08-5721 (U.S. Jan. 21, 2009), do not
require the judge to grant any, or any particular, reduction. We do not see any reason
to think that the district judge misunderstood the extent of her discretion after
Kimbrough when reducing this sentence by 16 months rather than some different
amount, or that the judge took any inappropriate matter into account. The judge gave
Harper the benefit of the lower Guideline for crack cocaine recently established by the
Sentencing Commission. The sentence, which is at the low end of the range determined
under the amended crack-cocaine Guideline, is reasonable.
Any other potential argument was raised and rejected in our prior decision.
We grant counsel’s motion to withdraw and dismiss the appeal as frivolous.