United States v. Askew, Ulice , 220 F. App'x 435 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 29, 2007
Decided April 2, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1592
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 02 CR 37
ULICE ASKEW,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Ulice Askew was convicted after a jury trial of conspiracy to possess and
distribute a mixture containing PCP, 21 U.S.C. §§ 846, 841(a)(1); attempted
possession for distribution of a mixture containing PCP, id.; and using a
communication facility to facilitate the commission of a drug felony, id. § 843(b). In
June 2003 he was sentenced to a total of 210 months’ imprisonment, the low end of
the guidelines range. We affirmed his convictions on direct appeal but issued a
limited remand under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.
2005), to learn whether the district court would have imposed the same sentence
under an advisory regime. United States v. Askew, 403 F.3d 496 (7th Cir. 2005).
The district court replied that it was unsure whether it would have imposed a
No. 06-1592 Page 2
different sentence, so we vacated the sentence and remanded for resentencing.
United States v. Askew, 417 F.3d 648 (7th Cir. 2005) (per curiam). The district
court, relying on its discretion under United States v. Booker, 543 U.S. 220 (2005),
imposed a below-guidelines sentence of 172 months’ imprisonment. Askew now
appeals that sentence, but his appointed counsel moves to withdraw because she
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). We invited Askew to respond to counsel’s motion, see Cir. R. 51(b), and
he has done so. Our review is limited to the potential issues identified in counsel’s
facially adequate brief and in Askew’s response. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
Several issues were contested at the second sentencing. The jury had
returned special verdicts finding Askew personally responsible for less than 100
grams of a mixture containing PCP on the conspiracy count, and between 100
grams and a kilogram of such a mixture on the attempted-possession count. These
findings triggered a maximum prison term of 40 years on the latter count. See 21
U.S.C. § 841(b)(1)(B)(iv). At the original sentencing, however, the district court had
credited the testimony of Askew’s drug supplier and found that Askew was
responsible for approximately eight kilograms of PCP mixture. The district court
also had imposed an upward adjustment under U.S.S.G. § 3C1.1 for obstruction of
justice because Askew, in the court’s opinion, had testified falsely at trial. At
resentencing the court declined Askew’s request to reconsider these findings, but it
did hear arguments from both parties regarding the sentencing factors set forth in
18 U.S.C. § 3553(a). The court imposed a sentence of 172 months, 38 months below
the low end of the 210- to 262-month range.
In her Anders submission, counsel first discusses two findings made by the
district court in applying the guidelines: the drug quantity and obstruction of
justice. Both findings were made at the original sentencing but left unchallenged
during Askew’s initial appeal. Counsel concludes that an argument about either
finding would be frivolous in this appeal because neither is clearly erroneous. See
United States v. Romero, 469 F.3d 1139, 1147 (7th Cir. 2006); United States v.
Davis, 442 F.3d 1003, 1008 (7th Cir. 2006). But these findings could have been
contested during the initial appeal, and so any argument about them was waived
and thus is beyond the scope of our remand. See 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) (“[P]arties cannot use the accident of remand as an opportunity to reopen
waived issues.”). These potential issues that counsel identifies therefore would not
even be properly before us.
Counsel and Askew then consider arguing that the district court violated the
dictates of Booker at resentencing by setting the base offense level and the
mandatory minimum sentence (of 10 years) based on a fact (the drug quantity) not
No. 06-1592 Page 3
found by the jury. This potential issue would be properly before us but counsel is
correct to call it frivolous. We have said repeatedly that Booker does not prevent a
sentencing judge from making factual findings that increase the guidelines range.
E.g., United States v. Hawkins, Nos. 05-4311 & 05-4243, slip. op. at 3 (7th Cir. Mar.
9, 2007); United States v. Harrison, 431 F.3d 1007, 1014 (7th Cir. 2005). And the
well-settled rule that mandatory minimums do not implicate the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000), remains intact after Booker. See Harris v. United
States, 536 U.S. 545, 568 (2002); United States v. Duncan, 413 F.3d 680, 683 (7th
Cir. 2005).
Counsel finally considers whether Askew could challenge the reasonableness
of his new, lower prison sentence. We agree with counsel that such a challenge
would be frivolous. We have noted that “[i]t is hard to conceive of below-range
sentences that would be unreasonably high,” United States v. George, 403 F.3d 470,
473 (7th Cir. 2005), and Askew’s sentence would not be one of the rare exceptions.
We would draw the same conclusion even if we gave no special weight to the length
of the sentence relative to the guidelines range. Cf. United States v. Rita, No.
05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75 U.S.L.W 3246
(U.S. Nov. 3, 2006) (No. 06-5754). The district court gave meaningful consideration
to the factors set forth in 18 U.S.C. § 3553(a), see United States v. Laufle, 433 F.3d
981, 987 (7th Cir. 2006), and counsel is unable to articulate any basis for arguing
that the sentence imposed is unreasonable.
Accordingly, the motion to withdraw is GRANTED and the appeal is
DISMISSED.