United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 1, 2010

Decided October 29, 2010

Before

MICHAEL S. KANNE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10‐1124

UNITED STATES OF AMERICA,

           Plaintiff‐Appellee,

v.

ARTHUR CONNER,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 07‐CR‐031‐S‐03

Barbara B. Crabb,

Judge.

O R D E R

Arthur Conner was convicted by a jury of distributing crack cocaine, see 21 U.S.C.

§ 841(a)(1), and initially sentenced to a term of life imprisonment.  In a previous appeal,

Conner argued that his sentence was unreasonable in light of the 100:1 disparity between

sentences for selling crack and powder cocaine.  We vacated Conner’s sentence and

remanded for further consideration in light of Kimbrough v. United States, 552 U.S. 85 (2007).

United States v. Conner, 583 F.3d 1011 (7th Cir. 2009).  On remand the district court (Judge

Crabb stepping in for Judge Shabaz while he was on medical leave) imposed a term of 25

years, 5 years below his guidelines range of 30 years to life.  Conner filed a notice of appeal,

but his appointed counsel now seeks to withdraw because he cannot identify any

nonfrivolous ground for appeal.  See Anders v. California, 386 U.S. 738 (1967).  We confine

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10‐1124 Page 2

our review to the potential issues identified in counselʹs facially adequate brief and

Conner’s response.  See CIR. R. 51(b); United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.

2002).

Counsel first examines whether Conner could argue that the district court erred by

not conducting a full resentencing on remand.  But the “scope of a district courtʹs power on

remand is determined by the language of the order of remand,” United States v. White, 406

F.3d 827, 831 (7th Cir. 2005), and here we remanded on the basis of Kimbrough “so that the

district court [could], in its discretion, consider Connerʹs arguments regarding the 100:1

ratio.”  Conner, 583 F.3d at 1027.  Given this language circumscribing the scope of the

remand, we would not conclude that the district court erred by confining its review to

issues relating to Kimbrough.  

Counsel also considers whether Conner could challenge the district court’s finding

on resentencing that he was responsible for 1.7 kilograms of crack.  But in his first appeal

Conner did not challenge the initial drug quantity finding (a range of 1.7 to 7.5 kilograms),

and the law‐of‐the‐case doctrine precludes him from challenging it now.  United States v.

Sumner, 325 F.3d 884, 891‐92 (7th Cir. 2003).

Counsel next examines whether Conner could argue that his 25‐year prison sentence

is unreasonable.  But a reasonableness argument would be frivolous because Conner’s

sentence was five years below the bottom of the guidelines range, and we would presume

any below‐guidelines sentence to be reasonable.  See United States v. Pape, 601 F.3d 743, 746

(7th Cir. 2010); United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008).  Conner would not

be able to rebut that presumption given the district court’s meaningful consideration of the

sentencing factors under 18 U.S.C. § 3553(a).  See United States v. Noel, 581 F.3d 490, 500 (7th

Cir. 2009).  The court considered Conner’s history of violence, both generally and against

women in particular, his constant failure to abide by terms of supervised release, as well as

his family members’ assertions that he could be a productive member of society, in reaching

its below‐guidelines sentence.

Last, counsel considers whether Conner could raise an ineffective assistance of

counsel claim on appeal.  But a claim of ineffective assistance would more properly be

presented on collateral review, where the record could be more fully developed.  See

Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Harris, 394 F.3d 543, 557‐

58 (7th Cir. 2005).

The only potential issue Conner identifies is whether the district court erred in

imposing—without explanation—a sentence consecutive to the balance of a state sentence

he was serving on unrelated charges.  This argument would be frivolous, however, because
No. 10‐1124 Page 3

the Sentencing Guidelines recommend that consecutive sentences be imposed when the

defendant, as here, was on probation at the time of the offense and had such probation

revoked.  U.S.S.G. § 5G1.3(c) cmt. 3(c).  United States v. Broadnax, 536 F.3d 695, 702 (7th Cir.

2008).  We also note that Conner did not argue for concurrent sentences at resentencing.

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