United States v. Kelvin Haley , 554 F. App'x 526 ( 2014 )

NONPRECEDENTIAL DISPOSITION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 February 13, 2014
Decided February 14, 2014
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2023
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 12-CR-121-WMC-01
KELVIN HALEY, William M. Conley,
Defendant-Appellant. Chief Judge.
ORDER
Kelvin Haley and his codefendant sold a confidential informant in Beloit,
Wisconsin, 14 grams of heroin and 7 grams of crack cocaine between March and
September 2012. Haley pleaded guilty to one count of heroin distribution, 21 U.S.C.
§§ 841(a)(1), 846, and was sentenced to 42 months’ imprisonment. Haley submitted a
notice of appeal, but his attorney concluded that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Haley did not respond to our
invitation to comment on counsel’s motion. See CIR. R. 51(b). We limit our review to the
potential issues identified in counsel’s facially adequate submission. See United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 13-2023 Page 2
Haley informed his attorney that he does not wish to withdraw his guilty plea, so
counsel properly omits discussion concerning the validity of the plea colloquy or the
voluntariness of his plea. 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 first explores a challenge to the district court’s calculation of drug
quantity. The court rejected Haley’s request at sentencing to vary from the guidelines to
account for the disparity between crack and powder cocaine sentences; the court
adopted the probation officer’s assessment of Haley’s drug quantity as the equivalent of
40–60 kilograms of marijuana (based on the 12.504 grams of heroin, 1.195 grams of tar
heroin, and 0.852 grams of raw heroin, along with relevant conduct of 7.872 grams of
crack cocaine, all of which was sold to a confidential informant). See U.S.S.G. § 2D1.1
cmt. n.8 (D). Counsel properly concludes that any such challenge would be frivolous
because the court acknowledged its discretion to take into account the disparity but
chose not to. See United States v. Matthews, 701 F.3d 1199, 1204 (7th Cir. 2012); United
States v. Corner, 598 F.3d 411, 416 (7th Cir. 2012).
Counsel next considers but properly rejects as frivolous any challenge to the
inclusion of the crack cocaine as relevant conduct. Haley did not object at sentencing to
its inclusion, so any review would be for plain error. See United States v. Arroyo, 406 F.3d
881, 888 (7th Cir. 2005). There was no plain error. The court adopted the probation
officer’s assessment that Haley’s relevant conduct included the three crack-cocaine sales
to the same confidential informant within a three-month period. See U.S.S.G.
§ 1B1.3(a)(2), cmt. n.9(b); United States v. White, 519 F.3d 342, 347–48 (7th Cir. 2008).
Moreover, as counsel notes, the range at which the court began its sentencing analysis
(24–30 months) was the same as it would have been if the crack cocaine had not been
included in the drug quantity.
Finally, as counsel correctly concludes, any challenge to reasonableness of
Haley’s sentence would be frivolous. Haley’s 42-month sentence is presumed
reasonable because it is within the guidelines range of 37 to 46 months, see Rita v. United
States, 551 U.S. 338, 341 (2007), and we agree with counsel that the record presents no
basis to set that presumption aside. The district court adequately addressed the
sentencing factors in § 3553(a) noting Haley’s supportive family, along with his
struggles with substance abuse and his long criminal history, 18 U.S.C. § 3553(a)(1), as
well as the seriousness of the drug transactions involved, and the need to protect the
community and deter Haley from future drug crimes, id. §§ 3553(a)(2)(A)–(C).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.