United States v. Adrian D. Harper ( 2019 )

NONPRECEDENTIAL DISPOSITION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 March 20, 2019
Decided March 22, 2019
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-1886
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 17-CR-146
ADRIAN HARPER, Lynn Adelman,
Defendant-Appellant. Judge.
ORDER
A police officer saw Adrian Harper, a felon under federal supervision, toss a gun
onto a residential lawn. Harper was arrested, and ultimately a jury found him guilty of
unlawfully possessing a firearm. See 18 U.S.C. § 922(g)(1). The district court sentenced
him to a total of 84 months in prison—77 months for the new conviction, consecutive to
7 months for the revocation of supervised release—and 2 years of supervised release.
Harper filed a notice of appeal, but his appointed lawyer asserts that the appeal is frivo-
lous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s sub-
mission explains the nature of the case and addresses the issues that an appeal of this
kind might involve. Because the analysis appears to be thorough, we limit our review to
No. 18-1886 Page 2
the subjects that counsel discusses and those that Harper raises in response. See
CIR. R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Harper could contest the denial of his motion to
suppress the gun, but he correctly concludes that it would be frivolous to do so. Harper
waived any challenge by failing to object to the magistrate judge’s report and recom-
mendation. FED. R. CRIM. P. 59(b)(2); see United States v. Valley, 755 F.3d 581, 585
(7th Cir. 2014). In any event, there is no expectation of privacy in, and thus no Fourth
Amendment protection for, abandoned property. See United States v. Alexander, 573 F.3d
465, 472–73 (7th Cir. 2009). And a police officer testified that he observed Harper toss
the gun away; we would not deem the district court’s decision to credit that testimony
clearly erroneous. See United States v. Mays, 819 F.3d 951, 956–57 (7th Cir. 2016).
Counsel next opines that it would be pointless to renew Harper’s argument (pre-
served through a motion under Federal Rule of Criminal Procedure 29) that the govern-
ment presented insufficient evidence to convict him. In reviewing the sufficiency of the
evidence, we would draw all reasonable inferences in favor of the jury’s verdict and va-
cate it only if no rational jury could have found the defendant guilty beyond a reasona-
ble doubt. United States v. Davis, 896 F.3d 784, 790 (7th Cir. 2018). Harper stipulated that
he had a prior felony conviction and that the gun was transported in interstate com-
merce. In order to find him guilty, the jury thus had only to find that he knowingly pos-
sessed the gun. 18 U.S.C. § 922(g)(1); Davis, 896 F.3d at 790. Evidence that a defendant
had “immediate physical possession or control of a firearm” can establish actual posses-
sion. United States v. Bloch, 718 F.3d 638, 642 (7th Cir. 2013). Here, a police officer testi-
fied that he saw Harper throw a gun, and his body microphone captured his contempo-
raneous exclamation that Harper had done so. Another officer testified that he immedi-
ately found the gun (which turned out to be loaded) where the first officer had seen it
land. The jury apparently found the officers’ testimony credible, and we would not dis-
turb its finding. See United States v. Corrigan, 912 F.3d 422, 429 (7th Cir. 2019).
Counsel also examines whether any reversible error occurred at trial and asserts
that he cannot discern a nonfrivolous ground for appeal. Harper and the government
jointly proposed the jury instructions, and so he waived any challenge to them. See
United States v. Kirklin, 727 F.3d 711, 716 (7th Cir. 2013). Furthermore, they conform to
the pattern instructions of our circuit. See United States v. Mokol, 646 F.3d 479, 486–87
(7th Cir. 2011). And we agree with counsel that Harper was not otherwise deprived of a
fair trial because of any error related to jury selection, attorneys’ statements, evidentiary
rulings, or the other possible trial errors that counsel examines.
No. 18-1886 Page 3
Counsel next contemplates challenging the procedural soundness of Harper’s
sentence. We would review the district court’s calculations of the applicable guidelines
range and policy-statement range for plain error because Harper did not object to them.
See United State v. Butler, 777 F.3d 382, 386–87 (7th Cir. 2015). We first address Harper’s
disagreement with counsel’s assessment that it would be frivolous to argue that Har-
per’s 2001 conviction for delivering cocaine, see WIS. STAT. § 961.41(1)(cm) (2000), quali-
fied as a predicate “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). (If
not, the base offense level would have been lower. See U.S.S.G. § 2K2.1(a)(6)(A).) Sec-
tion 4B1.2(b) defines “controlled substance offense” as one that involves “the manufac-
ture, import, export, distribution, or dispensing” of illegal drugs. Harper wishes to ar-
gue that Wisconsin’s prohibition on “delivery” covers a broader range of conduct than
§ 4B1.2, and that his prior conviction does not meet that definition.
We agree, however, with counsel’s conclusion that it would be futile to pursue
this contention. We found this same argument frivolous when directed at the Illinois
statute outlawing “delivery” in United States v. Redden, 875 F.3d 374 (7th Cir. 2017). Wis-
consin, like Illinois, defines delivery as “the actual, constructive or attempted transfer.”
Compare WIS. STAT. § 961.01(6) with 720 ILCS 570/102(h). “Transfer” is just another
word for distribute or dispense. See Redden, 875 F.3d at 375; United States v. Glass,
904 F.3d 319, 322–23 (3d Cir. 2018).
We also agree with counsel’s determination that it would be frivolous to chal-
lenge the substantive reasonableness of Harper’s prison sentences. The 77-month sen-
tence was at the low end of the guidelines range for the firearm offense (77 to 96 months
on an offense level of 22 with category V criminal history, see U.S.S.G. § 2K2.1(a)(4)(A),
(b)(4)(A); id. ch. 5, pt. A). And the 7-month term on revocation was below the policy-
statement range (21 to 27 months on a grade-B violation with category VI criminal his-
tory, see U.S.S.G. §§ 7B1.1(a)(2), 7B1.4(a) & cmt. *). (Harper’s criminal history score was
greater for the revocation because it dates back to the original sentence and thus in-
cludes points for five older offenses that did not count for the present conviction.
U.S.S.G. §§ 4A1.2(d)(1), (e)(2); 7B1.4 cmt. *.) Therefore, we are entitled to presume that
both sentences are reasonable, see Rita v. United States, 551 U.S. 338, 347–51 (2007), and
we would do so, see United States v. Jones, 774 F.3d 399, 404 (7th Cir. 2014) (supervised
release); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (prison).
No. 18-1886 Page 4
And, as counsel explains, Harper has presented nothing that would provide a ba-
sis for rebutting the presumption. The district court applied the 18 U.S.C. § 3553(a) sen-
tencing factors, see 18 U.S.C. § 3565(a), including the nature and circumstances of the
offense (Harper tossed a loaded gun into a yard in a residential area); the need to pro-
mote respect for the law and afford deterrence (he has a “significant” record and re-
peated supervision violations, including continued drug use and the current offense);
and the need to protect the public (he possessed a gun while on supervision for a gun
offense). The district court also addressed Harper’s principal mitigating arguments.
See United States v. Garcia-Segura, 717 F.3d 566, 568 (7th Cir. 2013). In exercising its au-
thority under § 3553(a), the court agreed with Harper, for example, that although the
stolen-firearm enhancement applied, his sentence should be discounted because no evi-
dence suggested that Harper was the thief. And it imposed consecutive sentences, as
the policy statement suggests, see U.S.S.G. § 7B1.3(f) & cmt. 4; United States v. Peterson,
852 F.3d 629, 631 (7th Cir. 2017), because “there should be some separate accountability
for the revocation.”
Nor could counsel present a nonfrivolous argument about the conditions of su-
pervised release. The presentence investigation report provided notice of the condi-
tions, and the court invited argument, but Harper never objected. See United States v.
Gabriel, 831 F.3d 811, 814 (7th Cir. 2016). The court imposed only conditions that were
sufficiently clear and tailored to his firearm conviction and violations of supervision.
See United States v. Armour, 804 F.3d 859, 868–69 (7th Cir. 2015).
In the course of examining whether Harper’s Wisconsin conviction for delivering
cocaine qualified as a “controlled substance offense” under the guidelines, we noted a
clerical error in the presentence investigation report, at paragraph 20. The conviction is
dated “8/30/2011” when it should say “2001.” This error does not affect our analysis, but
to the extent that the dates of Harper’s convictions have continuing relevance, we rec-
ommend that the district court correct the error pursuant to Federal Rule of Criminal
Procedure 36. See United States v. Crowder, 588 F.3d 929, 937–38 (7th Cir. 2009).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.