United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 16, 2008

Decided May 1, 2008

Before

     FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 07‐3237

UNITED STATES OF AMERICA,

           Plaintiff‐Appellee,

v.

TRAVEON LOVING,

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 04:06CR40029‐009‐JPG

J. Phil Gilbert,

Judge.

O R D E R

Traveon Loving pleaded guilty without the benefit of a plea agreement to one count

of conspiracy to distribute 50 grams or more of crack.  See 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

846.  The district court calculated a guidelines range of 87 to 108 months’ imprisonment, but

sentenced him to 120 months, the statutory minimum. See § 841(b)(1)(A). Loving filed a

notice of appeal, but counsel now seek to withdraw under Anders v. California, 386 U.S. 738

(1967), because he cannot discern a nonfrivolous basis for appeal.  Loving has not accepted

our invitation to comment on counsel’s motion.  See CIR. R. 51(b). Because counsel’s

supporting brief is adequate, we limit our review to the potential issues identified in

counsel’s brief.  See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).

Counsel begins by telling us that he advised Loving of the risks associated with

withdrawing his guilty plea, and that Loving decided that he does not wish to challenge the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3237 Page 2

plea.  So counsel appropriately refrained from discussing whether Loving could argue that

his plea was not voluntary.  See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).

Counsel next considers whether Loving could challenge his sentence.  At sentencing

Loving argued that he was entitled to a sentence below the statutory minimum under the

safety valve.  See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a).  But the district court disagreed and

found that Loving was ineligible for the safety valve because he had not been truthful in his

proffer.  It is was Loving’s burden to establish by a preponderance of the evidence that he

was eligible for the safety valve, see United States v. Montes, 381 F.3d 631, 634 (7th Cir. 2004),

and we would review for clear error the district court’s determination that he had not met

his burden, see United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004).  To meet the criteria

for the safety valve, Loving had to show, among other things, that he “truthfully provided

to the Government all information and evidence [he] has concerning the offense.”  U.S.S.G.

§ 5C1.2(a)(5).  At the sentencing hearing the government’s attorney said that Loving had

been dishonest at his proffer interview.  When faced with this assertion, Loving came

forward with nothing to show that his proffer was complete and truthful, as was necessary

to meet his burden.  See United States v. Martinez, 301 F.3d 860, 866 (7th Cir. 2002).  Thus we

agree with counsel that it would be frivolous for Loving to argue that the district court’s

decision was clearly erroneous.  And, in the absence of the safety valve, the district court

was not free to impose a sentence below the mandatory minimum provided by statute.  See

United States. v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007); United States v. Lee, 399 F.3d 864,

866 (7th Cir 2005).  Thus it also would be frivolous for Loving to argue that his sentence was

unreasonable.

Finally, we note that the Supreme Court recently determined that a district court

may sentence a defendant below the guidelines range if the court disagrees with the policy,

adopted by Congress and the Sentencing Commission, that offenses involving crack cocaine

should be sentenced more harshly than those involving the same amount of powder

cocaine.  See United States v. Kimbrough, 128 S. Ct. 558, 564 (2007).  But Kimbrough does not

help Loving because Loving received the statutory minimum sentence, and Kimbrough, as

an application of United States v. Booker, 543 U.S. 220 (2005), does not allow a district court to

impose a sentence below the statutory minimum.  See Kimbrough, 128 S. Ct. at 569‐71; United

States v. Johnson, No. 07‐1930, 2008 WL 516518, at *3 (8th Cir. 2008); United States v. Duncan,

479 F.3d 924, 930 (7th Cir. 2007).  So it would be frivolous for Loving to argue that he could

receive a lower sentence in light of Kimbrough.

Accordingly, counselʹs motion to withdraw is GRANTED, and the appeal is

DISMISSED.