NONPRECEDENTIAL DISPOSITION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 December 22, 2010
Decided December 22, 2010
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2239
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 09‐CR‐94‐BBC‐01
RAYMOND M. DAVIS, SR., Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Based on a tip from a confidential informant linking Raymond Davis’s son to drug
trafficking and weapons possession, police executed a search warrant for Davis’s home.
During the search Davis pointed police to a handgun and ammunition he stored in his
closet. Although he knew that his prior felony conviction for conspiring to distribute heroin
made it illegal for him to possess a firearm, Davis told police that he kept the gun for
protection because his family had been the victim of a brutal home invasion. Police arrested
Davis, and he later pleaded guilty to possession of a firearm as a felon. See
18 U.S.C.
§ 922(g)(1). The district court sentenced him to 24 months’ imprisonment, three months
below the bottom of his guidelines range. Davis appeals, but his appointed lawyer has
moved to withdraw because he cannot identify a nonfrivolous argument to pursue. See
No. 10‐2239 Page 2
Anders v. California,
386 U.S. 738 (1967). Davis has not responded to our invitation to
comment on counsel’s submission, see CIR. R. 51(b), so we confine our review to the two
potential issues identified in counsel’s brief. See United States v. Schuh,
289 F.3d 968, 973‐74
(7th Cir. 2002).
Counsel first considers whether Davis could argue that the district court erred in
denying his motion to dismiss the indictment. Based on District of Columbia v. Heller,
128
S. Ct. 2783 (2008), Davis had argued in the district court that
18 U.S.C. § 922(g)(1) was
unconstitutional because it impermissibly infringed on his Second Amendment right to
possess a gun even for purposes of protecting his home and family. The district court
denied the motion, relying on Heller’s often quoted dictum that “nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons.”
128 S. Ct. at 2816‐17. As counsel notes, any constitutional challenge to § 922(g)(1)
would be foreclosed by the Supreme Court’s recent decision in McDonald v. City of Chicago,
130 S. Ct. 3020, 3047 (2010) (plurality opinion), where it “repeat[ed] [its] assurances” that
Heller’s dictum regarding disqualification of firearms possession by felons was valid. See
also United States v. Williams,
616 F.3d 685, 691‐92 (7th Cir. 2010), cert. denied,
2010 WL
4363726 (U.S. Dec. 6, 2010); United States v. Skoien,
614 F.3d 638, 640‐41 (7th Cir. 2010) (en
banc), petition for cert. filed, (U.S. Oct. 12, 2010) (No. 10‐7005). Thus, we agree with counsel
that it would be frivolous to challenge the district court’s denial of Davis’s motion.
Counsel has also evaluated whether Davis could challenge the reasonableness of his
sentence. But as counsel correctly points out, the district court properly calculated Davis’s
guidelines range, and there is no basis for disturbing the presumption of reasonableness we
accord his below‐range sentence. See Rita v. United States,
551 U.S. 338, 347 (2007); United
States v. Pape,
601 F.3d 743, 746 (7th Cir. 2010). The district court calculated a guidelines
range of 27 to 33 months based on a category II criminal history and a total offense level of
17, which included a three‐point reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. In deciding to impose a 24‐month sentence, the court considered the sentencing
factors under
18 U.S.C. § 3553(a), emphasizing the serious nature of the crime, Davis’s need
for rehabilitative programs in light of his lengthy history of drug addiction and his prior
felony conviction for drug conspiracy. The court rejected Davis’s request to be sentenced to
a term of probation or home detention, but acknowledged his recent success in treating his
heroin addiction, his strong family ties, and his long history of steady employment. Under
these circumstances, Davis’s 24‐month sentence was reasonable, and it would be frivolous
to argue otherwise.
We therefore GRANT the motion to withdraw and DISMISS Davis’s appeal.
