United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 13, 2011

Decided April 18, 2011

Before

                     MICHAEL S. KANNE, Circuit Judge

                     DIANE S. SYKES, Circuit Judge

        JOHN DANIEL TINDER, Circuit Judge

No. 09‐3842

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

LEVELL HICKS,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 CR 324‐20

Samuel Der‐Yeghiayan,

Judge.

O R D E R

Levell Hicks was a “shift supervisor” overseeing crack cocaine sales for a notorious

street gang that ran a drug‐dealing operation out of the Square, a housing complex in

Chicago. The conspiracy averaged $15,000 in drug sales per day and operated twenty‐four

hours a day, seven days a week. For about two years, suppliers provided cocaine, heroin,

and marijuana to Square residents, who stored, packaged, and redistributed the drugs to

shift supervisors like Hicks. These supervisors, who usually oversaw up to fifteen drug

runners and dealers, then supplied street dealers with drugs to resell in shifts to customers

in the Square.  

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 09‐3842 Page 2

Hicks pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1), and the

district judge sentenced him to 292 months’ imprisonment, the bottom of his 292‐365 month

guideline range. Hicks appeals, but his appointed counsel has concluded that the appeal is

frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Hicks has

not responded to counsel’s motion. See CIR. R. 51(b). We review only the potential issues

identified in counsel’s facially adequate brief. See United States v. Tabb, 125 F.3d 583, 584 (7th

Cir. 1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

There is no indication in the record that Hicks wants his guilty plea set aside, 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 first considers whether Hicks could argue that the district court overstated

his relevant conduct when it attributed to him 4.5 kilograms of crack cocaine. He wonders if

he could argue that the district court should have attributed to him only 1.5 kilograms to

account for the four to six months he was absent from the conspiracy while healing from a

gunshot wound (unrelated to dealing drugs). Had Hicks been responsible for only 1.5

kilograms, his sentencing range would have lowered to 253 to 293 months’ imprisonment.

But the district judge found that Hicks was never absent from the conspiracy (during the

time he was allegedly recuperating, Hicks was arrested for aggravated arson for breaking

into an apartment in the Square and setting it afire). Even still, Hicks was responsible for

drug quantities directly attributed to him as well as the amounts involved by coconspirators

that were reasonably foreseeable. See, e.g., United States v. Turner, 604 F.3d 381, 385 (7th Cir.

2010). Hicks did not object to the statement in the presentence report that he knew that

during the first year of the conspiracy, the drug ring was selling one kilogram of crack

cocaine every month, and the next year he knew the conspiracy upped the ante to three

kilograms per month. Because Hicks did not object to these facts, the district court was

entitled to rely on them when it concluded that he was responsible for at least 4.5 kilograms

of crack cocaine. See FED. R. CRIM. P. 32(i)(3)(A); United States v. Isom, No. 10‐1085, 2011 WL

873309, at *4 (7th Cir. Mar. 14, 2011).

Counsel next questions whether Hicks could argue that the district court erred when

it added three levels to his base offense level for his supervisory role in the drug scheme. See

U.S.S.G. § 3B1.1(b). Counsel ponders whether Hicks could argue that because he lacked the

ability to hire or fire his street dealers he was too low on the totem pole to warrant an

adjustment under § 3B1.1(b). But so long as Hicks had both relative responsibility and

control over other coconspirators, the adjustment was appropriate. See, e.g., United States v.

Vallar, No. 07‐3641, 2011 WL 488877, at *4 (7th Cir. Feb. 14, 2011). Here, the district judge

found that Hicks recruited sellers of his drugs, determined whether certain street dealers

would receive drugs (and if so how much), and received a larger share of the profits for his
No. 09‐3842 Page 3

role than the street dealers. We have upheld the application of the § 3B1.1(b) adjustment in

similar circumstances. See United States v. Curb, 626 F.3d 921, 925‐26 (7th Cir. 2010); United

States v. Doe, 613 F.3d 681, 688 (7th Cir. 2010).

Last, counsel considers arguing that Hicks’s prison sentence is unreasonably high.

But Hicks’s sentence is within the guidelines range and thus presumptively reasonable,

see Rita v. United States, 551 U.S. 338, 347 (2007), and Hicks’s lawyer is unable to articulate

any basis to upset that presumption. The district judge also acknowledged his discretion

under Kimbrough v. United States, 552 U.S. 85 (2007), to disagree with the guidelines’ crack‐

to‐powder ratio underlying Hicks’s base offense level. Applying the factors in 18 U.S.C.

§ 3553(a), the court noted that Hicks matured while in prison and cooperated in the

prosecution of the person who shot him, but nonetheless arrived at a 292‐month sentence

because Hicks sold drugs in his own community, possessed a gun despite being the victim

of a shooting, and had prior arrests for possession of a controlled substance and aggravated

arson. We thus agree with counsel that any challenge to the reasonableness of his sentence

would be frivolous.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.