United States v. Brian Redden ( 2021 )

NONPRECEDENTIAL DISPOSITION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 April 2, 2021
Decided April 16, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20‐2456
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 19‐CR‐30124‐NJR‐01
BRIAN L. REDDEN, Nancy J. Rosenstengel,
Defendant‐Appellant. Chief Judge.
ORDER
While serving a federal sentence for a drug offense, Brian Redden was caught
with Suboxone and later pleaded guilty to possessing a prohibited object while
incarcerated. See 18 U.S.C. § 1791(a)(2), (b)(1). The district court sentenced him within
the guidelines range to an additional 27 months in prison. Redden appealed, but his
appointed counsel asserts that the appeal is frivolous and seeks to withdraw. See Anders
v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of the case and
addresses the issues that an appeal of this kind might be expected to involve. Because
the analysis appears thorough and Redden has not responded to the motion, see CIR. R.
No. 20‐2456 Page 2
51(b), we limit our review to the subjects that counsel discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Redden could challenge the district court’s
guidelines calculation and properly rejects such a challenge as frivolous. The district
court correctly calculated Redden’s guidelines range at 27 to 33 months, based on a total
offense level of 11 and criminal history category of VI. His offense level was largely
attributable to Suboxone’s classification as a “narcotic drug.” U.S.S.G. § 2P1.2(a)(2);
see 21 U.S.C. § 802(17). And his criminal history category reflected four prior convictions
resulting in sentences of more than one year and one month, see U.S.S.G. § 4A1.1(a), and
one resulting in probation, see id. § 4A1.1(c). See id. ch. 5, pt. A; United States v. LeFlore,
927 F.3d 472, 475 (7th Cir. 2019).
Then counsel examines whether Redden could argue that the district court failed
to address his arguments in mitigation or adequately explain its sentencing justification.
But counsel correctly recognizes that he waived any such challenge when he assured
the court at sentencing that it had addressed Redden’s mitigation arguments.
See United States v. Stephens, 986 F.3d 1004, 1009 (7th Cir. 2021); United States v. Gardner,
939 F.3d 887, 892 (7th Cir. 2019). Moreover, the court did discuss Redden’s principal
argument about a sentencing disparity in the guidelines for prisoners found to possess
drugs, compare U.S.S.G. § 2P1.2(a)(2) (base offense level of 13 for prison‐contraband
offense) with id. § 2D1.1(c)(17) (base offense level of 6 under drug‐quantity tables),
concluding that the guidelines “get it right” with respect to a federal inmate’s
possession of contraband. See United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009).
Finally, counsel evaluates and correctly rejects any potential challenge to the
substantive reasonableness of Redden’s sentence. Because the sentence was within a
properly calculated guidelines range, we would presume it to be reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. McDonald, 981 F.3d 579, 581 (7th Cir.
2020). Counsel has not identified anything in the record rebutting that presumption, nor
have we. The district court appropriately evaluated the relevant 18 U.S.C. § 3553(a)
factors, including the seriousness of Redden’s offense (he injured a prison guard who
confiscated the Suboxone), his history and characteristics (he had a “deplorable”
childhood, significant criminal history, and struggled with substance abuse), and the
need for specific and general deterrence (signaling that “this is a serious crime“).
See United States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016).
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.