United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 11, 2007∗

Decided November 8, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 07-2739

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY BROWN,

Defendant-Appellant.

Appeal from the United

States District Court for the 

Northern District of Illinois,

Eastern Division.

No. 03 CR 886

Harry D. Leinenweber,

Judge.

Order

This is the fourth appellate proceeding in the criminal prosecution of

Anthony Brown. The first time the case was here, we affirmed his conviction but

directed the district court to state whether the recent decision in United States v.

Booker, 543 U.S. 220 (2005), could affect Brown’s sentence. See United States v.

 

∗ This successive appeal has been submitted to the original panel under Operating

Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is

unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

To be cited only in accordance with Fed. R. App. P.

32.1Not to be cited per Circuit Rule 53
No. 07-2739 Page 2

Gougis, 432 F.3d 735 (7th Cir. 2005). The district court replied that it would have 

given Brown a lower sentence had it anticipated Booker’s holding. We then

remanded for resentencing. Instead of conducting a sentencing using the rules

prescribed by Fed. R. Crim. P. 32, however, the district court summarily imposed a

new sentence without giving Brown an opportunity to address the court or argue for

a lower sentence. On a fresh appeal, we reversed and remanded for a proper

resentencing by a different judge. This time, Rule 32 was followed, and Brown

received a sentence of 85 months’ imprisonment. (Brown’s original sentence was 97

months, and the first remand led to a 92-month sentence.) Brown has filed another

appeal; his counsel moves to withdraw and has filed a brief complying with Anders

v. California, 386 U.S. 264 (1967).

Brown, who opposes counsel’s motion in a filing under Circuit Rule 51(b),

contends that the district judge miscalculated the Guideline range by holding him

accountable for a firearm. This finding by the district court is what created a

potential problem under Booker, but as counsel observes in the Anders brief the 

initial appeal raised only a Booker point, and not any contention that the evidence 

was insufficient or that the Guidelines had been misapplied. It is too late to raise 

such an argument now, counsel concludes, because its omission from the initial

appeal forfeits the point. See, e.g., United States v. Swanson, 483 F.3d 509, 514-15

(7th Cir. 2007). A remand for resentencing leaves open only those issues that led to 

the remand. This remand was designed to give the district court an opportunity to 

exercise discretion to the extent that Booker allows, and after affording counsel a

chance to argue for a lower sentence--and Brown himself a new opportunity for

allocation. The remand was not designed to reopen other issues. Any argument to 

the contrary would be frivolous, as counsel properly concludes.

Brown’s response shows that he is confused by the idea of a remand. He says,

rightly, that the remand was “full” in the sense that resentencing had to comply

with Rule 32. But he is mistaken to think that this relieves him of his own litigating

strategy and reopens issues otherwise covered by forfeitures or the law of the case.

What is more, Brown does not offer any reason to suppose that the district

judge acted incorrectly in holding him accountable for the firearm. All coconspirators are accountable for other persons’ acts within the scope of the criminal

venture. Pinkerton v. United States, 328 U.S. 640 (1946). Brown’s further argument

that he had “taken off his [own] firearm”--and that testimony to the contrary should

not have been believed--misunderstands how judges apply the Guidelines. In

resentencing Brown, the district judge accepted as true his assertion that he was

not armed at the time of the drug transaction that immediately preceded his arrest.

But the judge also, and properly, concluded that the presence of weapons within the 

reach of the conspirators required Brown’s offense level to be increased by two 

under U.S.S.G. §2D1.1(b)(1). The question is not whether the weapon was being

carried in Brown’s pocket or waistband (or in the hands of another co-conspirator)

but whether it was “present” at the scene of the transaction. See Application Note 3

to §2D1.1. Brown does not offer any reason to think that he has a non-frivolous

objection to the judge’s conclusion that a firearm was “present” at the scene.

Brown’s sentence is 12 months below the lowest point in the Guideline range.
No. 07-2739 Page 3

Any argument that the sentence is too high would be untenable.

The motion to withdraw is granted, and the appeal is dismissed as frivolous.