NONPRECEDENTIAL DISPOSITION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 August 25, 2010
Decided August 26, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 09‐4071
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 08‐CR‐36
ROBERT A. HUFF, Michael J. Reagan,
Defendant‐Appellant. Judge.
O R D E R
Robert Huff gave up his law practice and joined an established network that was
growing marijuana on the west coast and selling it in Chicago and Milwaukee. The group
was already under investigation when Huff became involved, and within a few months he
and 30 others had been arrested by federal authorities. Huff pleaded guilty to conspiracy to
possess and distribute marijuana, see
21 U.S.C. §§ 846, 841(a)(1), and stipulated that at least
1,000 kilograms could be attributed to the network. That amount ordinarily would trigger a
10‐year minimum sentence,
id. § 841(b)(1)(A)(vii), but the district court concluded that Huff
was eligible for the “safety valve” and sentenced him to 24 months, see
18 U.S.C. § 3553(f).
Huff filed a notice of appeal, but his appointed lawyer has concluded that the case is
frivolous and moves to withdraw. See Anders v. California,
386 U.S. 738, 744 (1967). Huff
opposes counsel’s motion. See CIR. R. 51(b). We review only the potential issues identified
No. 09‐4071 Page 2
in counsel’s facially adequate brief and Huff’s response. See United States v. Schuh,
289 F.3d
968, 973‐74 (7th Cir. 2002).
Appellate counsel first questions whether Huff could challenge the voluntariness of
his guilty plea or the adequacy of the plea colloquy. See FED. R. CRIM. P. 11(b). This
discussion should have been omitted; Huff’s lawyer represents that Huff seeks only to
lower his prison term, so counsel should not be contemplating claims designed to
undermine Huff’s guilty plea. See United States v. Knox,
287 F.3d 667, 670‐71 (7th Cir. 2002).
Counsel also assesses whether Huff might argue that it was clear error to deny him a
two‐level downward adjustment as a minor participant in the conspiracy; Huff proposes the
same argument in his Rule 51(b) response. See U.S.S.G. § 3B1.2(b); United States v. Munoz,
610 F.3d 989, 993 (7th Cir. 2010). The district court found that Huff’s role wasn’t minor
because, although he joined only 4 months before authorities broke up the drug ring, during
that time he distributed 108 pounds of marijuana, traveled to California to negotiate a better
price for a favored buyer, and allowed the head of the growing operation to use his Indiana
vacation home while supervising the delivery of a load from the west coast. We agree with
counsel that it would be frivolous to challenge the district court’s decision as clearly
erroneous. See United States v. Lopez,
545 F.3d 515, 517 (7th Cir. 2008); United States v.
Gonzalez,
534 F.3d 613, 617 (2008); United States v. Gallardo,
497 F.3d 727, 741 (7th Cir. 2007).
Huff also proposes to argue that his total offense level should have been 15, not 17 as
calculated by the district court. The court counted as relevant conduct only the 108 pounds
of marijuana that Huff personally distributed (while discounting another 235 pounds that
he stashed—unwittingly, he says—in his Chicago condominium). That quantity yielded a
base offense level of 20. See U.S.S.G. § 2D1.1(a)(3), (c)(10). The court subtracted two levels
because of the safety valve, see id. § 2D1.1(b)(11), and three more for acceptance of
responsibility, see id. § 3E1.1. Those adjustments would have reduced the total to 15, except
that for defendants like Huff, who otherwise face a minimum of five years in prison, “the
offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments)
shall be not less than level 17.” Id. § 5C1.2(b)(2); see United States v. Jackson,
493 F.3d 1179,
1180 n.2 (10th Cir. 2007); United States v. Keresztury,
293 F.3d 750, 758‐59 (5th Cir. 2002).
Thus, a claim that the offense level is overstated would be frivolous.
Counsel and Huff also contemplate challenging the length of the prison term. The
sentence is within the guidelines range and thus presumed to be substantively reasonable,
Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Mykytiuk,
415 F.3d 606, 608 (7th
Cir. 2005), and counsel has not thought of a reason to disturb that presumption. At Huff’s
urging, however, appellate counsel has considered arguing that the district court, in
selecting a 24‐month sentence, disregarded the directive of
18 U.S.C. § 3553(a)(6) to avoid
No. 09‐4071 Page 3
“unwarranted sentencing disparities” among similar offenders. See Gall v. United States,
552
U.S. 38, 54‐56 (2007); United States v. Statham,
581 F.3d 548, 556 (7th Cir. 2009). Huff had
urged the court to place him on probation like two of his codefendants, and since instead he
was sent to prison he assumes that the court must have ignored subsection (a)(6). But a
court that sentences within a properly calculated guidelines range necessarily gives weight
and consideration to avoiding unwarranted disparities. See Gall,
552 U.S. at 54 (2007);
United States v. Turner,
604 F.3d 381, 389 (7th Cir. 2010); United States v. Pulley,
601 F.3d 660,
668 (7th Cir. 2010). And “[n]othing is more common than for codefendants to receive
different sentences.” United States v. Gammicchia,
498 F.3d 467, 469 (7th Cir. 2007). We agree
with counsel that this claim would be frivolous.
Huff also asserts, in his Rule 51(b) response, that the sentence is tarnished by a
broken promise to tell the sentencing court about the nature and extent of his cooperation.
Huff is correct that the prosecutor never recited this term of the plea agreement at
sentencing, but the government did acknowledge that he cooperated with agents after his
arrest and further debriefed after he was indicted. Twice the prosecutor assured the district
judge that Huff had done what was necessary to benefit from the safety valve, which
shaved eight years from his sentence. See
18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5);
United States v. Corson,
579 F.3d 804, 814 (7th Cir. 2009), cert. denied,
130 S. Ct. 1751 (2010);
United States v. Nagel,
559 F.3d 756, 760 (7th Cir. 2009). The prosecutor, moreover,
contradicted nothing that Huff or his lawyer said during allocution about his continuing
cooperation in other investigations, and immediately afterward the prosecutor
recommended a below‐range prison sentence. The district court was fully informed, and so
a claim that the prosecutor breached the plea agreement would be frivolous. See United
States v. Riggs,
287 F.3d 221, 225 (1st Cir. 2002); United States v. Prior,
957 F.2d 478, 481‐82
(7th Cir. 1992); United States v. Wooten,
942 F.2d 878, 883‐84 (5th Cir. 1991).
Huff raises several other points in opposition to counsel’s motion to withdraw,
including his belief that all of his lawyers in the district court and in this court have been
deficient. We have said often that a claim of ineffective assistance is best raised on collateral
review where a complete record can be developed, and this case is no different. See Massaro
v. United States,
538 U.S. 500, 504‐05 (2003); United States v. Harris,
394 F.3d 543, 557‐58 (7th
Cir. 2005). The remainder of Huff’s contentions have been considered and do not
undermine our agreement with appellate counsel that this appeal is frivolous
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
