NONPRECEDENTIAL DISPOSITION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 December 22, 2010
Decided December 27, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐4118
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
08 CR 50026‐1
JOSHUA L. DAVIS,
Defendant‐Appellant. Philip G. Reinhard,
Judge.
O R D E R
Joshua Davis pleaded guilty to distributing crack cocaine, see
21 U.S.C. § 841(a)(1),
and possessing firearms as a felon, see
18 U.S.C. § 922(g)(1). At sentencing the district court
concluded that he qualified for application of the career‐offender guideline. See U.S.S.G.
§ 4B1.1. Davis’s base‐offense level under § 4B1.1 was 37, but he received a three‐level
deduction for acceptance of responsibility. See id. § 3E1.1. With a total offense level of 34
and a criminal‐history category of VI, Davis’s guidelines imprisonment range was 262 to
327 months. The court sentenced him to 240 months. Davis appeals, but his appointed
lawyer seeks to withdraw under Anders v. California,
386 U.S. 738 (1967), because he cannot
identify a nonfrivolous issue to pursue on appeal. Davis opposes this motion, see CIR. R.
51(b), and has asked that we appoint him new counsel. We confine our review to the
potential issues identified in counsel’s facially adequate brief and in Davis’s response.
See United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 09‐4118 Page 2
Counsel represents that Davis does not want his guilty pleas set aside, a point Davis
does not contradict in his Rule 51(b) response. Counsel thus appropriately omits from his
Anders submission any discussion about the adequacy of the plea colloquy or the
voluntariness of the guilty pleas. See United States v. Knox,
287 F.3d 667, 671‐72 (7th Cir.
2002).
At sentencing Davis argued that he deserved a below‐range prison term because, he
said, he and a friend had provided the government with substantial assistance. See U.S.S.G.
§ 5K1.1. The government opposed Davis’s request and explained that his friend had ceased
cooperating and that neither Davis nor his friend had provided information that led to
arrests or other charges. The district court agreed with the government that Davis had not
provided substantial assistance, but still the court explicitly stated that it would recognize
his effort as a factor in mitigation.
Davis also urged the district court to treat crack and powder cocaine equally when
deciding his sentence. The court considered this argument but responded that, even if it
relied on the lower statutory penalty for a like amount of powder, Davis would still face an
imprisonment range of 188 to 235 months because he was a career offender. And given
Davis’s need for deterrence and treatment for his mental illness, the court concluded that an
appropriate sentence was 240 months.
Counsel now questions whether Davis could challenge the validity of one of the
prior convictions that qualified him as a career offender. A collateral attack on a predicate
conviction, however, is allowed only when the conviction was obtained in violation of the
right to counsel. See Wilson‐El v. Finnan,
544 F.3d 762, 765 (7th Cir. 2008). Neither counsel
nor Davis has made such an argument, and the state‐court records from Davis’s predicate
convictions show that he was represented during both proceedings. Thus we agree with
counsel that it would be frivolous to pursue this issue.
Counsel and Davis consider whether Davis could challenge the substantive
reasonableness of his prison sentence. Counsel does not identify any potential issue apart
from a claim that the term is unreasonable. A reasonableness argument would be frivolous,
however, because Davis’s prison sentence is 22 months below the bottom of the guidelines
range, and counsel cannot articulate any basis to challenge the presumption of
reasonableness that applies. See United States v. Pape,
601 F.3d 743, 746 (7th Cir. 2010);
United States v. Wallace,
531 F.3d 504, 507 (7th Cir. 2008).
Davis, on the other hand, questions whether the district court should have exercised
its discretion to sentence him even further below the guidelines. He challenges what he
characterizes as the court’s refusal to give him “any credit” for his assistance to the
government, and he also criticizes the court’s conclusion that the stiffer sentences for
No. 09‐4118 Page 3
offenses involving crack had little impact on his imprisonment range. Both contentions
would be frivolous. The court took into account Davis’s assistance when selecting a prison
term below the range and also evaluated his argument that he should receive a reduced
sentence because of the differing penalties for like amounts of power and crack. We would
not find an abuse of discretion merely because Davis disagrees with the weight the court
gave to his pleas in mitigation. See United States v. Haskins,
511 F.3d 688, 696 (7th Cir. 2007).1
Moreover, Davis cannot benefit from the recently enacted Fair Sentencing Act because that
legislation is not retroactive. United States v. Bell,
624 F.3d 803, 814‐15 (7th Cir. 2010).
Finally, counsel points out that the district court impermissibly ordered Davis to
participate in the Inmate Financial Responsibility Program but notes that Davis does not
wish to raise the issue. Even so, we have made clear that sentencing courts do not have the
authority to mandate participation in the IFRP. United States v. Boyd,
608 F.3d 331, 335 (7th
Cir. 2010), cert. denied,
2010 WL 3485626 (U.S. Nov. 29, 2010); United States v. Munoz,
610
F.3d 989, 997 (7th Cir. 2010). But we are satisfied here that this error did not affect what is
otherwise a reasonable sentence, and so we modify the sentence to clarify that Davis’s
participation in the IFRP must be voluntary. See Boyd,
608 F.3d at 335. And because we
agree with counsel that an appeal would be frivolous, we deny Davis’s motion for
appointment of new counsel.
Accordingly, counsel’s motion to withdraw is GRANTED. The judgment is
MODIFIED in accordance with this order, Davis’s motion for substitute counsel is DENIED,
and the appeal is DISMISSED.
1
Davis also asserts in his Rule 51(b) response that when he committed his crimes he
was not taking his psychiatric medication and therefore was unable “to make the right
decisions.” To the extent that he implies that his mental state provided a ground in
mitigation at sentencing, we note that the district court addressed this point in fashioning
an appropriate sentence. Davis may disagree with the weight the court gave to his
explanation, but that disagreement is not a ground for appeal.
