# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 29, 2013

Decided August 29, 2013

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 13

‐ 1397

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

DARIN TYREE DAVENPORT,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 12

‐ 20027

‐ 001

Michael P. McCuskey,

Judge

.

O R D E R

In April 2012 police responded to a report of a gunshot at an apartment building

in Danville, Illinois, where Darin Davenport was living. The citizen who called the

police said that two people in a Chevrolet Blazer were arguing after the gunshot. When

officers arrived at the apartment building, they stopped a Blazer driven by Davenport.

He jumped from the vehicle and fled, leaving his girlfriend behind. Davenport soon

was caught. When the arresting officers returned with him to their squad car, they were

met by Anthony Keys, who accused Davenport of firing the shot after an argument

outside Davenport’s apartment. Keys told the officers that he was broke and unable to

pay Davenport what he owed for drugs; Davenport had reacted to this news by NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 1397 Page 2

slugging Keys with a handgun and then firing a round as Keys ran away. Keys only

heard the shot, but a friend with him outside the apartment saw Davenport fire into the

air. And Davenport’s girlfriend, who stayed inside the apartment while Davenport was

outdoors with Keys, told the officers that she heard a scuffle before the gunshot. She

also told police that, when she was in the Blazer with Davenport a short time later, he

tossed the gun out the window when he spotted a squad car. Police recovered the

revolver and a spent shell casing. Davenport was taken to the police station, where he

insisted that he “wasn’t trying to shoot” Keys.

Davenport, who had prior felony convictions for residential burglary, 720 ILCS

5/19

‐ 3(a), and distribution of a look

‐ alike substance, id

. § 570/404(b), pleaded guilty to

possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). The district court calculated a

guidelines imprisonment range of 84 to 105 months and sentenced Davenport to 96

months. Davenport filed a notice of appeal, but his appointed lawyer asserts that the

possible appellate claims are frivolous and seeks to withdraw under Anders v. California

,

386 U.S. 738, 744 (1967). Davenport has not accepted our invitation to comment on

counsel’s motion. See C IR

. R. 51(b). We confine 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).

Davenport has told counsel that he does not want to challenge his guilty plea,

and thus counsel properly forgoes discussing the adequacy of the plea colloquy or the

voluntariness of the plea. See 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 does consider whether Davenport could challenge the four

‐ level

upward adjustment he received for possessing the gun in connection with another

felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). The probation officer included this increase

because Davenport’s conduct as described by Keys and the two other witnesses (firing a

gun into the air in a residential area with people nearby) satisfied the statutory elements

of reckless discharge of a firearm. See 720 ILCS 5/24

‐ 1.5(a); People v. Collins

, 824 N.E.2d

262, 264–68 (Ill. 2005); People v. Watkins

, 837 N.E.2d 943, 944–46 (Ill. App. Ct. 2005).

Davenport objected to the increase because, in his view, the hearsay accounts from

these witnesses are unreliable (their stories were introduced through the testimony of a

police officer and transcripts of grand jury testimony from Keys and the girlfriend).

These witnesses are unreliable, Davenport asserted, because Keys and the other man

were “drug dealers” and his girlfriend, who had dated drug dealers, was a “woman of

ill repute.”No. 13

‐ 1397 Page 3

Appellate counsel reasons that this objection was appropriately rejected because,

as the district court recognized, the witnesses’ accounts not only are corroborated, but

essentially made unnecessary, by the spent shell casing and Davenport’s tacit admission

that he fired the gun even if he wasn’t “trying to shoot” Keys. We agree with counsel’s

assessment, yet Davenport’s objection to the reliability of the hearsay statements would

not have been stronger without the corroborating evidence. For one, the record does not

support the characterization of Keys and his friend as drug “dealers” rather than users;

Keys said he and Scott had purchased drugs from Davenport, but the amounts and

reasons for these purchases are not disclosed in the record. What is more, we have

rejected Davenport’s premise that drug dealers and users (and, by extension, their

girlfriends) are unworthy of belief. See United States v. Stevenson

, 680 F.3d 854, 858 (7th

Cir. 2012); Kunz v. DeFelice

, 538 F.3d 667, 677 (7th Cir. 2008); United States v. Cross

, 430

F.3d 406, 411 (7th Cir. 2005). Thus, the potential claim about the upward adjustment

would be frivolous.

Counsel does not perceive any other argument about the guidelines calculations

and turns to whether Davenport could claim that the district court ignored his

arguments in mitigation. Counsel represents that Davenport argued for leniency on the

grounds that his “criminal history was relatively low and he had not fathered any

children out of wedlock.”

In fact, the first of these contentions was not presented to the district court, so the

judge cannot be faulted for not addressing it. At sentencing Davenport’s lawyer noted

that the defendant is in criminal history category IV and not the highest category of VI,

but that observation hardly constitutes an argument in mitigation. Davenport’s

imprisonment range would have risen if he was in Category VI (the low end would

have jumped from 84 months to 110), and his lawyer did not suggest that Category IV

exaggerates the defendant’s past crimes. At all events, the district judge discussed

Davenport’s criminal history at length when concluding that a sentence at the top of the

guidelines range was unwarranted. See United States v. Trujillo

‐ Castillon

, 692 F.3d 575,

578 (7th Cir. 2012).

In contrast, Davenport’s lawyer did argue at sentencing that leniency should be

shown because the defendant had not fathered any children out of wedlock. Appellate

counsel cannot think of a reason why this fact is mitigating, and neither can we.

See United States v. Barahona–Montenegro

, 565 F.3d 980, 985 (6th Cir. 2009) (characterizing

as irrelevant the number of children fathered by defendant out of wedlock). Not only is

the premise frivolous but the contention is admittedly stock (defense counselNo. 13

‐ 1397 Page 4

acknowledged having made the same argument nearly a hundred times, mostly in state

court). Thus, the district judge was not obligated to respond, and an appellate claim

arguing otherwise would be frivolous. See United States v. Gary

, 613 F.3d 706, 709 (7th

Cir. 2010); United States v. Young

, 590 F.3d 467, 474 (7th Cir. 2009).

Last, counsel concludes, and we agree, that a challenge to the reasonableness of

Davenport ʹ s prison sentence would be frivolous. A sentence within the guidelines range

is presumed to be reasonable, see Rita v. United States

, 551 U.S. 338, 350–51 (2007); United

States v. Aslan

, 644 F.3d 526, 531–32 (7th Cir. 2011), and counsel has not identified a basis

to disturb that presumption. The district court meaningfully addressed the factors listed

in 18 U.S.C. § 3553(a), including the need to deter Davenport from committing future

crimes, the defendant’s failure to stay employed, and the threat that his possession and

use of guns poses to Danville—a community already struggling with shootings and

gang violence.

The motion to withdraw is GRANTED, and the appeal is DISMISSED.