# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 15, 2009

Decided July 15, 2009

Before

RICHARD D. CUDAHY, Circuit Judge

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08

‐ 2229

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

ERRICK R. HAWKINS,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Indiana,

Hammond Division.

No. 2:07 CR 30 PS

Philip P. Simon,

Judge

.

O R D E R

Errick Hawkins pleaded guilty to four counts of distributing more than five grams of

crack cocaine, 21 U.S.C. § 841(a)(1), and one count of possessing with the intent to sell more

than 50 grams of crack cocaine, id

. He went to trial on a sixth count, for possessing a firearm

during a drug trafficking crime, 18 U.S.C. § 924(c), but the government dropped the charge

after a hung jury. He received a sentence of 120 months’ imprisonment, the statutory

minimum. Hawkins has appealed, but his appointed counsel see no potentially meritorious

issues for appeal and therefore seek to withdraw. See Anders v. California

, 386 U.S. 738

(1967). We invited Hawkins to comment on counsel ʹ s motion, see C IR

. R. 51(b), but he did NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 2229 Page 2

1 It was revealed at sentencing that the probation officer had erred by considering the

pure drug seized as opposed to the total drug seized. Had the proper drug weight been

used, Hawkins’s total offense level would have been 31 and his guideline range 108 to 135

months. not respond, so we review only the potential issues identified in counsel ʹ s facially adequate

brief. See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002). Counsel inform us that

Hawkins does not wish to withdraw his guilty plea, so they appropriately avoid any

analysis of the voluntariness of the plea or the adequacy of the colloquy. See United States v.

Knox

, 287 F.3d 667, 671

‐ 72 (7th Cir. 2002).

In January 2007, a confidential informant working for the FBI purchased crack

cocaine from Hawkins on four separate occasions. Each purchase involved over five grams

of crack and totaled almost fifty grams. When the FBI searched Hawkins’s residence

pursuant to a search warrant, it found 83 more grams of crack and five firearms, all nearby

the drugs.

After Hawkins pleaded guilty to the drug counts, a probation officer prepared a

presentence report calculating an offense level of 29 based on a base offense level of 30 for

the drug offenses, see U.S.S.G. § 2D1.1(c)(5), plus 2 points for possessing a firearm, id. §

2D1.1(b)(1), less a 3

‐ point reduction for acceptance of responsibility, id

. § 3E1.1(a) and (b).

The probation officer did not assess Hawkins any criminal history points, so his criminal

history category was I. Based on total offense level of 29 and a criminal history category of

I, the probation officer initially calculated Hawkins’s guideline range to be 87 to 108 months

imprisonment. 1 See U.S.S.G. § 5A. The probation officer also noted that Hawkins was

subject to a ten

‐ year statutory minimum for the possession with intent to sell more than 50

grams of crack, see 21 U.S.C. § 841(a)(1), which produced an adjusted guideline range of 120

months. See U.S.S.G. § 5G1.1(b).

Hawkins objected to the PSR, arguing that the drugs involved in the offense were not

crack but another form of cocaine base. At the sentencing hearing, the government called

witnesses to prove that the substance was crack cocaine. A police officer, Nathan Eaton,

testified that he was familiar with crack cocaine and identified the drugs involved in the

offense as crack. Eaton also said that, during an interview with Hawkins when he was

arrested, Hawkins admitted to selling crack cocaine. A government chemist further

testified that Hawkins’s drugs showed signs of baking soda, which is used to make crack

cocaine. The district judge discussed the evidence at length and concluded that the

government had shown by a preponderance of the evidence that the substance involved in

the offense was crack cocaine.No. 08

‐ 2229 Page 3

Counsel first consider whether Hawkins could challenge the district court’s

determination that the substance involved in the offense was crack cocaine. We would

review that district court’s finding for clear error. United States v. Padilla

, 520 F.3d 766, 769

(7th Cir. 2008). We agree with counsel that a challenge to the district court’s finding as clear

error would be frivolous. As counsel point out, there was corroborated evidence that the

substance involved was crack cocaine, including the testimony of an investigating agent and

chemist at the sentencing hearing, as well as Hawkins’s own admission.

Counsel next consider, at Hawkins’s request, whether Hawkins would be able to

challenge the two

‐ level enhancement under § 2D1.1(b)(1) for possessing a dangerous

weapon. Because Hawkins did not object to the enhancement during sentencing, we would

review this question for plain error, see United States v. Perry

, 223 F.3d 431, 433 (7th Cir

2000), and we agree that any such challenge would be frivolous. The sentencing guidelines

provide that “the adjustment should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.” See U.S.S.G. § 2D1.1,

Application Note 3. In this case, police found five weapons nearby the large quantity of

crack that Hawkins intended to sell. Thus, any argument that the district court plainly

erred because it did not find a “clearly improbable” connection between the weapons and

guns would certainly fail.

Counsel also note that Hawkins would like to argue that, because the court

ultimately dismissed the gun charge after a hung jury, the guns could not be used against

him in sentencing. We have rejected this argument with respect to § 924(c) acquittals

, it

certainly would gain no purchase with respect to a hung jury. See United States v. Morris

,

498 F.3d 634, 645 (7th Cir. 2007). All that matters is whether sufficient evidence supports

the district court’s finding that Hawkins possessed a weapon in connection with the offense,

id., and, as we have already discussed, here the evidence was ample. Moreover, as counsel

point out, even if Hawkins were to successfully challenge his § 2D1.1(b)(1) enhancement, he

would still be subject to the ten

‐ year statutory minimum.

Finally, we agree with counsel that any challenge to the reasonableness of Hawkins’s

sentence would be frivolous. Hawkins advocated for the statutory minimum, the judge

considered Hawkins’s arguments, and the judge could not have given him anything less.

See United States v. Cooper

, 461 F.3d 850, 856 (7th Cir. 2006).

We therefore G RANT counsel ʹ s motion to withdraw and D ISMISS Hawkins’s appeal.