United States v. Jeffrey Coleman , 409 F. App'x 956 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 16, 2011
Decided February 17, 2011
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09-4120
Appeal from the
UNITED STATES OF AMERICA, United States District Court for the
Plaintiff-Appellee, Eastern District of Wisconsin.
v. No. 04-CR-66
JEFFREY G. COLEMAN, Rudolph T. Randa,
Defendant-Appellant. Judge.
ORDER
Jeffrey Coleman pleaded guilty to conspiracy to possess with intent to distribute
more than five kilograms of cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to
360 months’ imprisonment. After we affirmed his conviction and sentence, United States v.
Coleman, 231 F. App’x 512 (7th Cir. 2007), the Supreme Court vacated our judgment and
remanded the case for further consideration in light of Rita v. United States, 551 U.S. 338, 351
(2007), which held that a district court may not presume a sentence within a defendant’s
guidelines range to be reasonable. Coleman v. United States, 552 U.S. 1138 (2008). In
reviewing the case on remand, we noted that the district court at sentencing did not have
the benefit of Rita and expressed concern that the court had applied the presumption
favoring a within-guidelines sentence; we thus remanded for resentencing. United States v.
Coleman, 290 F. App’x 938, 939-40 (7th Cir. 2008). The district court ultimately resentenced
No. 09-4120 Page 2
Coleman to the statutory minimum of 240 months’ imprisonment. See 21 U.S.C. § 841(b)(1).
Coleman appeals but his appellate counsel has moved to withdraw under Anders v.
California, 386 U.S. 738 (1967), contending that any challenge to Coleman’s conviction or
sentence would be frivolous. Coleman has not responded to counsel’s motion. See CIR. R.
51(b). We limit our review to the potential issues identified in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Coleman could challenge the imposition of the
20-year statutory minimum. This statutory minimum was triggered by the government’s
filing of an Information demonstrating that Coleman was convicted in 1989 in Milwaukee
County Circuit Court for possession of cocaine with intent to deliver. See §§ 841(b)(1)(A);
851. Counsel considers whether Coleman could argue that the 20-year statutory sentence
violated the Sixth Amendment because a jury had not found his prison conviction to qualify
as a prior felony drug offense beyond a reasonable doubt. Such a challenge, however,
would be beyond the scope of remand—reconsideration of Coleman’s sentence in light of
Rita—and therefore frivolous. See United States v. Swanson, 483 F.3d 509, 514-15 (7th Cir.
2007); United States v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002); United States v. Morris,
259 F.3d 894, 898 (7th Cir. 2001). And in any event, we squarely rejected this argument in
Coleman’s first appeal. See Coleman, 231 F. App’x at 515 (citing Harris v. United States, 536
U.S. 545 (2002), and Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
Counsel also briefly considers whether Coleman could challenge the reasonableness
of his new sentence. However, Coleman’s 20-year sentence was below the properly
calculated guidelines range of 30 years to life, and we presume a below-guidelines sentence
to be reasonable. See United States v. Shamah, 624 F.3d 449, 460 (7th Cir. 2010); United States
v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008). Counsel cannot point to any reason to rebut that
presumption. Moreover, as counsel notes, the district court could not impose a sentence
below the statutory minimum because the only two grounds for doing so are inapplicable.
The government did not move for a reduced sentence based on substantial assistance, see 18
U.S.C. § 3553(e); United States v. McMutuary, 217 F.3d 477, 487 (7th Cir. 2000), and
Coleman’s six criminal-history points made him ineligible for “safety value” relief, see 18
U.S.C. § 3553(f)(1); United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.