NONPRECEDENTIAL DISPOSITION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 10, 2011
Decided August 17, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10‐3335
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, New Albany Division.
v.
No. 4:06CR00023‐014
JEFFERY DEAN,
Defendant‐Appellant. Sarah Evans Barker,
Judge.
O R D E R
A jury found Jeffery Dean guilty of conspiracy to possess and distribute
methamphetamine, see
21 U.S.C. §§ 846, 841(a)(1), and in August 2008 the district court
sentenced him to 156 months’ imprisonment. After we vacated that term and remanded for
resentencing, United States v. Dean,
574 F.3d 836 (7th Cir. 2009), the district court again
ordered Dean to serve 156 months. He filed another appeal, but his appointed lawyer has
concluded that the case is frivolous and moves to withdraw. See Anders v. California,
386 U.S.
738 (1967). We review only the potential issues identified in counsel’s facially adequate brief
and in Dean’s response. See CIR. R. 51(b); United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir.
2002).
No. 10‐3335 Page 2
At the first sentencing hearing, the district court concluded that the conspiracy
involved more than 150 kilograms of methamphetamine, which corresponds to a base
offense level of 38. See U.S.S.G. § 2D1.1(c)(1). But the court did not make a finding about
how much of that total was foreseeable to Dean and within the scope of his joint
undertaking with his coconspirators (and thus properly attributable to him, see id.
§ 1B1.3(a)(1)(B)). Instead, the court started at Level 38 and subtracted 4 levels to “split the
difference” between that figure and the Level 30 which, Dean argued, should apply. Dean,
574 F.3d at 841. The court then shaved another point after concluding that drug addiction
rather than greed drove Dean’s participation in the conspiracy.
Id. The result of this
unconventional approach was a Level 33, which, coupled with Dean’s Category II criminal
history, yielded an imprisonment range of 151 to 188 months. On Dean’s appeal we
affirmed his conviction but remanded for resentencing and directed the district judge to
determine the drug quantity applicable to Dean.
Id. at 845‐46. On remand the court found
that Dean was responsible for at least 11.2 kilograms of methamphetamine, establishing an
offense level of 36, see U.S.S.G. § 2D1.1(c)(2), and a guidelines range (taking into account the
20‐year statutory maximum, see
21 U.S.C. § 841(b)(1)(C)) of 210 to 240 months. Any amount
of methamphetamine from 5 to 15 kilograms would have yielded the same imprisonment
range. See U.S.S.G. § 2D1.1(c)(2).
In his Anders submission counsel appropriately acknowledges that any challenge to
Dean’s conviction would be outside the scope of our remand and thus frivolous. This
appeal is limited to claims arising from Dean’s resentencing; other issues that could have
been raised in the earlier appeal are waived. See United States v. Jackson,
186 F.3d 836, 838
(7th Cir. 1999); United States v. Parker,
101 F.3d 527, 528 (7th Cir. 1996).
As to the resentencing, counsel first considers challenging the drug quantity (and
corresponding offense level of 36) set by the district court on remand. Part of the court’s
11.2‐kilogram total comes from the trial testimony of codefendant Aaron Unger, who said
that during the conspiracy he delivered to Dean a total of 6.3 kilograms that had been
fronted to Dean by other coconspirators. Unger also recounted that he collected from Dean
payment for past deliveries. The district court credited Unger’s testimony (despite his later
recantation), and Dean cannot escape responsibility for drug transactions in which he was
personally involved; foreseeability is not an issue. See U.S.S.G. § 1B1.3(a)(1)(A); United States
v. Martinez,
518 F.3d 505, 510 (7th Cir. 2008); United States v. Gutierrez‐Herrera,
293 F.3d 373,
376 (7th Cir. 2002). And since 6.3 kilograms is more than enough to sustain an offense level
of 36, any appellate claim would be frivolous. It does Dean no good to argue, as he does in
his Rule 51(b) response, that additional drug amounts were incorrectly attributed to him in
reaching 11.2 kilograms.
No. 10‐3335 Page 3
Finally, counsel recognizes that any challenge to the reasonableness of Dean’s prison
sentence would be frivolous. We presume that a below‐guidelines sentence is reasonable,
United States v. Berg,
640 F.3d 239, 255 (7th Cir. 2011); United States v. West,
628 F.3d 425, 431
(7th Cir. 2010), and counsel is unable to identify any reason to disregard that presumption.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
