United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 16, 2011

Decided February 17, 2011

Before

WILLIAM J. BAUER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 09-4120

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY G. COLEMAN,

Defendant-Appellant.

Appeal from the 

United States District Court for the 

Eastern District of Wisconsin. 

No. 04-CR-66

Rudolph T. Randa,

Judge.

O R D E R

Jeffrey Coleman pleaded guilty to conspiracy to possess with intent to distribute

more than five kilograms of cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to

360 months’ imprisonment. After we affirmed his conviction and sentence, United States v.

Coleman, 231 F. App’x 512 (7th Cir. 2007), the Supreme Court vacated our judgment and

remanded the case for further consideration in light of Rita v. United States, 551 U.S. 338, 351

(2007), which held that a district court may not presume a sentence within a defendant’s

guidelines range to be reasonable. Coleman v. United States, 552 U.S. 1138 (2008). In

reviewing the case on remand, we noted that the district court at sentencing did not have

the benefit of Rita and expressed concern that the court had applied the presumption

favoring a within-guidelines sentence; we thus remanded for resentencing. United States v.

Coleman, 290 F. App’x 938, 939-40 (7th Cir. 2008). The district court ultimately resentenced

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 09-4120 Page 2

Coleman to the statutory minimum of 240 months’ imprisonment. See 21 U.S.C. § 841(b)(1). 

Coleman appeals but his appellate counsel has moved to withdraw under Anders v.

California, 386 U.S. 738 (1967), contending that any challenge to Coleman’s conviction or

sentence would be frivolous. Coleman has not responded to counsel’s motion. See CIR. R.

51(b). We limit 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). 

Counsel first considers whether Coleman could challenge the imposition of the 

20-year statutory minimum. This statutory minimum was triggered by the government’s

filing of an Information demonstrating that Coleman was convicted in 1989 in Milwaukee

County Circuit Court for possession of cocaine with intent to deliver. See §§ 841(b)(1)(A);

851. Counsel considers whether Coleman could argue that the 20-year statutory sentence

violated the Sixth Amendment because a jury had not found his prison conviction to qualify

as a prior felony drug offense beyond a reasonable doubt. Such a challenge, however,

would be beyond the scope of remand—reconsideration of Coleman’s sentence in light of

Rita—and therefore frivolous. See United States v. Swanson, 483 F.3d 509, 514-15 (7th Cir.

2007); United States v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002); United States v. Morris,

259 F.3d 894, 898 (7th Cir. 2001). And in any event, we squarely rejected this argument in

Coleman’s first appeal. See Coleman, 231 F. App’x at 515 (citing Harris v. United States, 536

U.S. 545 (2002), and Almendarez-Torres v. United States, 523 U.S. 224 (1998)).

 Counsel also briefly considers whether Coleman could challenge the reasonableness

of his new sentence. However, Coleman’s 20-year sentence was below the properly

calculated guidelines range of 30 years to life, and we presume a below-guidelines sentence

to be reasonable. See United States v. Shamah, 624 F.3d 449, 460 (7th Cir. 2010); United States

v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008). Counsel cannot point to any reason to rebut that

presumption. Moreover, as counsel notes, the district court could not impose a sentence

below the statutory minimum because the only two grounds for doing so are inapplicable. 

The government did not move for a reduced sentence based on substantial assistance, see 18

U.S.C. § 3553(e); United States v. McMutuary, 217 F.3d 477, 487 (7th Cir. 2000), and

Coleman’s six criminal-history points made him ineligible for “safety value” relief, see 18

U.S.C. § 3553(f)(1); United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008). 

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