United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 22, 2009

Decided September 28, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09-1585

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEROME G. HUGHES,

Defendant-Appellant.

Appeal from the United States

District Court for the Western 

District of Wisconsin.

No. 07 CR 33

Barbara B. Crabb,

 Chief Judge.

O R D E R

Defendant Jerome Hughes pleaded guilty to federal drug charges and received a life

sentence. He appealed the sentence claiming that the district court miscalculated his offense

level which, together with his established criminal history level, yielded a guidelines range of

life. The government conceded that a mistake had been made and further acknowledged that

the district court’s attempt to remedy its error was inadequate. We agreed and remanded the

case for resentencing. United States v. Taylor, et al., Nos. 07-3636, et al. (7th Cir. December 9,

2008) (unpublished order).

On remand the district court corrected its error, determining the guideline range to be 360

months to life, and imposed a sentence of 480 months. Dissatisfied with the new sentence,

Hughes filed a notice of appeal.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 09-1585 Page 2

Court-appointed counsel has moved to withdraw because he is unable to discern any

meritorious issues for appeal. See Anders v. California, 386 U.S. 738 (1967). Hughes responded

to our invitation under Circuit Rule 51(b) to comment on his attorney’s submission. We limit

our review to those issues identified in counsel’s brief and Hughes’ response to it. See United

States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

In his Anders brief, court-appointed counsel correctly discounts potential arguments other

than those springing from the one mistake identified in Hughes’ first appeal. Those issues are

waived. Hughes “cannot use the accident of a remand to raise in a second appeal an issue that

he could just as well have raised in the first appeal.” United States v. Parker, 101 F.3d 527, 528

(7th Cir. 1996). That leaves only challenges arising out of the corrected sentence ordered by

this court in Hughes’ first appeal. 

In the first appeal, we directed the district court to correct Hughes’ guideline range, which

it did, and to resentence Hughes based on the corrected range. As counsel notes, though

480 months is a very long time, there is nothing unreasonable about the district court’s

sentence. We agree. At resentencing the district judge heard from counsel and Hughes. She

reviewed the transcripts of the original sentencing and considered all of the appropriate factors

under 18 U.S.C. § 3553(a). Although the prosecutor again argued for a life sentence, the district

judge concluded otherwise. She sentenced Hughes to a within guidelines sentence of 480

months, remarking that Hughes was a dangerous individual who had amassed a record unlike

any she had ever seen.

Hughes’ argument that the district court could “rely on the crack/powder cocaine

disparity” to impose a lower sentence is a nonstarter. Counsel did not raise a claim under

Kimbrough v. United States, 128 S.Ct. 558 (2007), in Hughes’ first appeal, and this court did not

mention Kimbrough in its ruling on that appeal. That the district judge mistakenly referenced

Kimbrough at resentencing, concluding that the disparity in the sentences for crack and powder

cocaine does not require a lower sentence in Hughes’ case, is of no moment. Like counsel, we

discern no nonfrivolous issues for review.

We therefore GRANT counsel’s motion to withdraw and DISMISS this appeal.