United States v. Terril Thomas , 589 F. App'x 792 ( 2015 )

NONPRECEDENTIAL DISPOSITION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 January 6, 2015
Decided January 13, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2640
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v.
No. 13-CR-30209-MJR
TERRIL THOMAS,
Defendant-Appellant. Michael J. Reagan,
Chief Judge.
ORDER
Terril Thomas pleaded guilty to distributing cocaine base, see 21 U.S.C.
§ 841(a)(1), and was sentenced as a career offender to 120 months’ imprisonment. The
district court determined that Thomas was a career offender, see U.S.S.G. § 4B1.1,
because he was convicted in Illinois in 2008 of unlawfully possessing a controlled
substance with intent to deliver, see 720 ILCS 570/407, and in 2011 of unlawfully
delivering a controlled substance while located within 1,000 feet of a church, see id.
570/401. He filed a notice of appeal, but his attorney has concluded that the appeal is
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
Thomas has not accepted our invitation to respond to counsel’s motion. See CIR. R. 51(b).
No. 14-2640 Page 2
Counsel has submitted a brief that explains the nature of the case and addresses the
issues that an appeal of this kind might be expected to involve. Because the analysis in
the brief appears to be thorough, we limit our review to the subjects that counsel has
discussed. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first informs us that Thomas does not wish to have his guilty plea set
aside, and thus counsel appropriately forgoes discussing the voluntariness of the plea or
the adequacy of Thomas’s plea colloquy. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel considers whether Thomas could argue that the court erred in
classifying as relevant conduct his possession of .5 grams of cocaine base that, Thomas
had contended, was for his own personal use (raising his base offense level to 14 rather
than 12, compare U.S.S.G. § 2D1.1(c)(13), with id. § 2D1.1(c)(14)). Based on the presentence
report, the court held Thomas responsible for 1.5 grams of cocaine base—1 gram that he
sold to a confidential informant and .5 grams that the police found during a search of his
person (and which Thomas maintained was for his own use). Although drugs possessed
for personal consumption may not be included in the relevant conduct analysis for
distribution, see United States v. Sumner, 325 F.3d 884, 888 (7th Cir. 2003), counsel
properly recognizes that this argument would be frivolous because, as a career offender,
Thomas’s sentence was based on the statutory maximum for his offense of conviction,
not the drug-quantity provisions of U.S.S.G. § 2D1.1. See U.S.S.G. § 4B1.1(b)(3); United
States v. Redmond, 667 F.3d 863, 872 (7th Cir. 2012).
Counsel next considers whether Thomas could argue that his 120-month
sentence—below his calculated guidelines range of 151 to 188 months—is substantively
unreasonable because of his youth and lack of education. But a below guidelines
sentence is presumed reasonable, see United States v. Lidell, 543 F.3d 877, 885 (7th Cir.
2008); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), and we agree with counsel
that the record presents no basis to set that presumption aside. The district court
acknowledged Thomas’s personal characteristics, including his impoverished
childhood, his lack of both education and job training, and his youth (age 25 at the time
of his most recent conviction), see 18 U.S.C. § 3553(a)(1), but deemed these
considerations outweighed by the serious nature of his current drug offense and his
extensive criminal history, see id. § 3553(a)(2)(A),(D).
Counsel finally considers whether Thomas could challenge one of his conditions
of supervised release—participation in “any program deemed appropriate to improve
job readiness skills,” including a GED or Workforce Development Program. But we
No. 14-2640 Page 3
agree with counsel that such an argument would be frivolous. Thomas forfeited any
challenge to any of the special conditions by not contesting them at sentencing.
See United States v. Ross, 475 F.3d 871, 873 (7th Cir. 2007). In any event job training and
GED preparation are explicitly listed among the discretionary conditions that a court
may impose, see 18 U.S.C. § 3563(b)(4) (district court may impose condition that
defendant “pursue conscientiously a course of study or vocational training that will
equip him for suitable employment”); United States v. McKissic, 428 F.3d 719, 725–26 (7th
Cir. 2005), and this is not a case in which a supervised release directive to obtain a GED
is unrelated to the offense, cf. United States v. Smith, 770 F.3d 653, 657 (7th Cir. 2014).
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.