# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 16, 2010

Decided December 17, 2010

Before

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 2394

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

LEWIS N. JUDKINS, JR.,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 09

‐ CR

‐ 20

Lynn Adelman,

Judge

.



### O R D E R

Lewis Judkins pleaded guilty to conspiracy to possess and distribute cocaine. See 21

U.S.C. §§ 846, 841(a)(1). Because of the amount of cocaine involved, Judkins faced

a minimum of 10 years’ imprisonment. The district court calculated a guidelines

imprisonment range of 210 to 262 months and sentenced him to 180 months plus 5 years of

supervised release.

Judkins filed a notice of appeal, but his appointed lawyer seeks to withdraw because

he cannot identify a nonfrivolous ground for appeal. See Anders v. California

, 386 U.S. 738

(1967). Judkins has not accepted our invitation to respond to counsel’s motion. See C IR

. R.

51(b). We confine our review to the potential issues identified in counsel’s facially adequate

brief. See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002). Judkins does not want NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2394 Page 2

his guilty plea vacated, so counsel properly omits any discussion of the adequacy of the

plea colloquy or the voluntariness of the plea. See United States v. Knox

, 287 F.3d 667, 670

‐ 72

(7th Cir. 2002).

Counsel cannot identify any procedural error in the district court’s calculation of the

guidelines imprisonment range. At sentencing, Judkins objected to the quantity of drugs

attributed to him by the probation officer. The district judge found Judkins responsible for

15 to 50 kilograms of cocaine based on a codefendant’s statements as summarized in

a report by one of the investigating agents. Judkins objected that these hearsay statements

were unreliable and thus insufficient to meet the preponderance standard required to

support a base offense level of 34 under U.S.S.G. § 2D1.1(c)(3). See United States v. Nubuor

,

274 F.3d 435, 444 (7th Cir. 2001). The judge countered that the rules of evidence do not

apply to sentencing determinations under the guidelines and found that the codefendant’s

statements were reliable because they were made against penal interest and were consistent

with the other evidence. See United States v. Rollins

, 544 F.3d 820, 838 (7th Cir. 2008); United

States v. Santiago

, 495 F.3d 820, 824 (7th Cir. 2007). Given that we review drug

‐ quantity

findings for clear error and overturn them only if we have a definite and firm conviction

that a mistake has been committed, see Rollins

, 544 F.3d at 838, counsel is correct that any

challenge on this basis would be frivolous.

Judkins also objected to the four

‐ level upward adjustment under U.S.S.G. § 3B1.1(a)

for leadership of a criminal activity involving at least five people. Judkins argued that he

should have received a smaller increase under § 3B1.1(c) because only four people were

named in the indictment. The district judge noted that there was evidence that Judkins’s

brother and a number of suppliers were also involved in the conspiracy even though they

were not indicted along with Judkins and his three named coconspirators. The notes

accompanying § 3B1.1 clarify that a participant in a criminal activity is any person

“criminally responsible for the commission of the offense,” see id. § 3B1.1 cmt. n.1, and

persons can be criminally responsible even if they are not charged with the offense, see

United States v. Nelson

, 5 F.3d 254, 258 (7th Cir. 1993). We agree with counsel that it would

be frivolous to argue that the district court clearly erred in applying this adjustment.

Counsel last considers whether Judkins could challenge the reasonableness of his

prison sentence. The total term of 180 months is below the guidelines range of 210 to 262

months. Counsel cannot identify any reason to disregard the presumption of

reasonableness applicable to sentences below the guidelines range. 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 evaluated the sentencing factors in 18 U.S.C. § 3553(a) and the arguments Judkins

offered in mitigation, including his family’s support and his own efforts to stay involved in

his children’s lives. But the court concluded that a substantial sentence was necessaryNo. 10

‐ 2394 Page 3

because cocaine trafficking is a serious offense and Judkins was the leader of the trafficking

operation. We would not conclude that the court abused its discretion in making that

assessment, and thus counsel is correct that any challenge to the reasonableness of the

sentence would be frivolous.

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.