# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 20, 2015

Decided October 20, 2015

Before

J OEL M. FLAUM, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 15

‐ 1898

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

CLEVIS C. HOLMES,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:14

‐ cr

‐ 30155

‐ DRH

‐ 1

David R. Herndon,

J udge

.

O R D E R

Federal agents sent an informant to buy drugs from Clevis Holmes on three

occasions in March and April 2014. Holmes pleaded guilty to one count each of

distributing powder cocaine, crack cocaine, and heroin and was sentenced as a career

offender, see U.S.S.G. § 4B1.1, to a total of 188 months’ imprisonment. He filed a notice of

appeal, but his appointed lawyer, who also represented Holmes in the district court,

asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California

,

386 U.S. 738 (1967). Holmes opposes counsel’s motion. See C IR

. R. 51(b). Counsel has

submitted a brief that explains the nature of the case and addresses potential issues that

an appeal of this kind might be expected to involve. Because the analysis in counsel’s

brief appears to be thorough, we limit our review to the subjects that counsel discusses,

plus the additional issues that Holmes, disagreeing with counsel, believes have merit. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 15

‐ 1898 Page 2

See United States v. Bey

, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner

, 103 F.3d

551, 553 (7th Cir. 1996).

Counsel first tells us that Holmes does not want his guilty pleas set aside, and

thus the lawyer appropriately forgoes discussing the voluntariness of the pleas or the

adequacy of Holmes’s plea colloquy. See F ED

. R. C RIM

. P. 11; 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 then considers whether Holmes could challenge his designation as a

career offender based on two prior convictions for a felony controlled substance offense.

S ee U.S.S.G. §§ 4B1.1(a) & cmt. n.1, 4B1.2(b). Holmes had been convicted in Illinois in

2003 and 2007 for delivery of a controlled substance, the first of these offenses occurring

within 1,000 feet of a housing project. See 720 ILCS 570/401, 407. These are adult

convictions for crimes punishable by imprisonment for at least a year, see U.S.S.G.

§ 4B1.2(c) & cmt. n.1 (defining “prior felony conviction”), and so the two state

convictions for distributing drugs are sufficient to make Holmes a career offender.

See United States v. Jackson

, 103 F.3d 561, 570–71 (7th Cir. 1996).

As for the choice of 188 months as the appropriate prison sentence, counsel first

questions whether Holmes could argue that the district court should have commented

on his assertion, made only in his sentencing memorandum, that the career offender

guideline was developed without empirical research and thus yielded an excessive

imprisonment range. Counsel adds that the court acknowledged being lenient with

other career offenders but was not with Holmes. Yet several times at sentencing the

district judge acknowledged both the advisory nature of the guidelines and his

discretion to reject a guidelines sentence because of a policy disagreement with the

Sentencing Commission. See United States v. Annoreno

, 713 F.3d 352, 359 (7th Cir. 2013);

United States v. Corner 598 F.3d 411, 416 (7th Cir. 2010) (en banc). The judge concluded,

however, that Holmes had earned the “career offender” label based on his criminal

history. And while a judge is free to reject a guideline as lacking a basis in data,

experience, or expertise, a judge is not required to delve into the history of a guideline in

order to satisfy himself that the process that produced it was adequate. See United States

v. Garthus

, 652 F.3d 715, 721; United States v. Aguilar

‐ Huerta

, 576 F.3d 365, 367–68 (7th Cir.

2009). At all events, any appellate claim about Holmes’s arguments in mitigation would

be frivolous because the district judge asked if those arguments had been addressed to

the defendant’s satisfaction, and his lawyer said yes. See United States v. Modjewski

,

783 F.3d 645, 654–55 (7th Cir. 2015); United States v. Donelli

, 747 F.3d 936, 940–41 (7th Cir.

2014); United States v. Garcia

‐ Segura

, 717 F.3d 566, 568–69 (7th Cir. 2013).No. 15

‐ 1898 Page 3

Counsel also considers arguing that 188 months is substantively unreasonable but

correctly concludes that a challenge to the length of Holmes’s prison term would be

frivolous. The sentence imposed is at the low end of the range, and within

‐ guidelines

prison sentences are presumed reasonable on appellate review. United States v. Martinez,

650 F.3d 667, 671 (7th Cir. 2011); Rita v. United States

, 551 U.S. 338, 347 (2007). Counsel

acknowledges that the district court weighed the sentencing factors in 18 U.S.C.

§ 3553(a), in particular Holmes’s lengthy and serious criminal history. Counsel has not

identified any reason to question the presumption of reasonableness, nor have we.

Holmes, though, argues in his Rule 51(b) response that the district court improperly

considered the probation officer’s account of the conduct underlying several of his prior

convictions and that the court “demonstrated bias” by noting that the offense of

conviction did not reflect the severity of Holmes’s violent behavior on those occasions.

But § 3553(a) empowers the sentencing court to consider a defendant’s character and

prior conduct when determining the threat that defendant poses to public safety and risk

of recidivism, including behavior that never resulted in conviction or even formal

criminal charges. See United States v. Drain, 740 F.3d 426, 432 (7th Cir. 2014); United States

v. Jones

, 696 F.3d 695, 701–02 (7th Cir. 2012); United States v. Sonnenberg

, 628 F.3d 361, 368

(7th Cir. 2010).

Counsel next rejects as frivolous any potential challenge to several special

conditions of supervised release. We agree. Holmes had four weeks’ notice of these

conditions because they were proposed in the presentence report, and each was

pronounced by the district judge in open court. See United States v. Kappes

, 782 F.3d 828,

838–39 (7th Cir. 2015). Holmes did not object when the probation officer proposed the

special conditions, and those conditions—participating in drug testing and treatment,

obtaining employment or enrolling in educational programs, and submitting to

reasonable searches of his person and property—are appropriately tailored to the

offenses of conviction and the pattern of behavior that, the judge explained, had led

Holmes to a life of crime. See id. at 847–48.

Finally, in his Rule 51(b) response, Holmes suggests that his lawyer’s

performance was deficient because, in Holmes’s view, counsel did not alert the district

court to all mitigating factors. Any claim of ineffective assistance, however, is best

reserved for collateral review where the record can be better developed. See United States

v. Harris

, 394 F.3d 543, 557–58 (7th Cir. 2005); Massaro v. United States

, 538 U.S. 500,

504–05 (2003). That is especially so when a defendant is represented on appeal by theNo. 15

‐ 1898 Page 4

lawyer whose performance is challenged as inadequate. See United States v. Rezin

, 322

F.3d 443, 445 (7th Cir. 2003).

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