NONPRECEDENTIAL DISPOSITION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 June 1, 2010
Decided October 29, 2010
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐1124
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 07‐CR‐031‐S‐03
ARTHUR CONNER, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Arthur Conner was convicted by a jury of distributing crack cocaine, see
21 U.S.C.
§ 841(a)(1), and initially sentenced to a term of life imprisonment. In a previous appeal,
Conner argued that his sentence was unreasonable in light of the 100:1 disparity between
sentences for selling crack and powder cocaine. We vacated Conner’s sentence and
remanded for further consideration in light of Kimbrough v. United States,
552 U.S. 85 (2007).
United States v. Conner,
583 F.3d 1011 (7th Cir. 2009). On remand the district court (Judge
Crabb stepping in for Judge Shabaz while he was on medical leave) imposed a term of 25
years, 5 years below his guidelines range of 30 years to life. Conner filed a notice of appeal,
but his appointed counsel now seeks to withdraw because he cannot identify any
nonfrivolous ground for appeal. See Anders v. California,
386 U.S. 738 (1967). We confine
No. 10‐1124 Page 2
our review to the potential issues identified in counselʹs facially adequate brief and
Conner’s response. See CIR. R. 51(b); United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir.
2002).
Counsel first examines whether Conner could argue that the district court erred by
not conducting a full resentencing on remand. But the “scope of a district courtʹs power on
remand is determined by the language of the order of remand,” United States v. White,
406
F.3d 827, 831 (7th Cir. 2005), and here we remanded on the basis of Kimbrough “so that the
district court [could], in its discretion, consider Connerʹs arguments regarding the 100:1
ratio.” Conner,
583 F.3d at 1027. Given this language circumscribing the scope of the
remand, we would not conclude that the district court erred by confining its review to
issues relating to Kimbrough.
Counsel also considers whether Conner could challenge the district court’s finding
on resentencing that he was responsible for 1.7 kilograms of crack. But in his first appeal
Conner did not challenge the initial drug quantity finding (a range of 1.7 to 7.5 kilograms),
and the law‐of‐the‐case doctrine precludes him from challenging it now. United States v.
Sumner,
325 F.3d 884, 891‐92 (7th Cir. 2003).
Counsel next examines whether Conner could argue that his 25‐year prison sentence
is unreasonable. But a reasonableness argument would be frivolous because Conner’s
sentence was five years below the bottom of the guidelines range, and we would presume
any below‐guidelines sentence to be reasonable. 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). Conner would not
be able to rebut that presumption given the district court’s meaningful consideration of the
sentencing factors under
18 U.S.C. § 3553(a). See United States v. Noel,
581 F.3d 490, 500 (7th
Cir. 2009). The court considered Conner’s history of violence, both generally and against
women in particular, his constant failure to abide by terms of supervised release, as well as
his family members’ assertions that he could be a productive member of society, in reaching
its below‐guidelines sentence.
Last, counsel considers whether Conner could raise an ineffective assistance of
counsel claim on appeal. But a claim of ineffective assistance would more properly be
presented on collateral review, where the record could be more fully developed. 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 only potential issue Conner identifies is whether the district court erred in
imposing—without explanation—a sentence consecutive to the balance of a state sentence
he was serving on unrelated charges. This argument would be frivolous, however, because
No. 10‐1124 Page 3
the Sentencing Guidelines recommend that consecutive sentences be imposed when the
defendant, as here, was on probation at the time of the offense and had such probation
revoked. U.S.S.G. § 5G1.3(c) cmt. 3(c). United States v. Broadnax,
536 F.3d 695, 702 (7th Cir.
2008). We also note that Conner did not argue for concurrent sentences at resentencing.
The motion to withdraw is GRANTED and the appeal is DISMISSED.
