United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 5, 2021 

Decided January 22, 2021 

Before

DIANE S. SYKES, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge

No. 20-2436 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

DAVID EARNEST, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Southern District of Illinois. 

No. 4:96-cr-40036-JPG-002 

J. Phil Gilbert, 

Judge.

O R D E R

In 2019, David Earnest moved under the First Step Act to reduce his sentence to 

time served (approximately 290 months). See First Step Act, Pub. L. No. 115-391, 

§ 404(b), 132 Stat. 5194 (2018). Earnest was convicted in 1996 of one count of conspiracy 

to distribute crack cocaine, in violation of 21 U.S.C. § 846, and one count of distribution 

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He received two career-offender 

sentences of 420 months’ imprisonment with 5 years’ supervised release, running 

concurrently. While incarcerated, Earnest was convicted in the Southern District of 

Texas of assaulting a federal officer and sentenced to a consecutive sentence of 

262 months in prison. After considering Earnest’s conduct before and after sentencing, 

including the relevant factors under 18 U.S.C. § 3553(a), the district court declined to 

reduce his sentence for the drug offenses. Earnest appeals, but his counsel asserts that 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 20-2436 Page 2 

the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 

(1967). For the following reasons, we grant counsel’s motion and dismiss the appeal.

We have never held that Anders applies to an appeal challenging a decision 

under § 404 of the First Step Act. Anders does not extend to other proceedings in which 

a defendant seeks to reduce his sentence following a retroactive sentencing change

under 18 U.S.C. § 3582. See Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); 

United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013). But we have held that the First 

Step Act is a procedural “vehicle” distinct from § 3582. United States v. Sutton, 962 F.3d 

979, 984–85 (7th Cir. 2020). So we will follow the Anders safeguards here to ensure our 

consideration of all potential issues. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 

2016) (applying Anders safeguards in revocation proceedings in which defendant had 

no constitutional right to counsel). 

Counsel’s brief appears thorough; it explains the nature of the case and the issues 

that an appeal of this kind might be expected to involve. We notified Earnest of 

counsel’s motion, and he did not respond. See CIR. RULE 51(b). We therefore limit our 

review to the topics that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 

(7th Cir. 2014). 

Counsel first considers whether Earnest could present a non-frivolous argument

that the district court procedurally erred and determines that he could not. First, the 

district court properly concluded that Earnest was eligible for a sentencing reduction 

under § 404(b) of the First Step Act: He committed federal criminal offenses before 

August 3, 2010, the statutory penalties for which were modified by the Fair Sentencing 

Act of 2010, Pub. L. 111-220; §§ 2-3, 124 Stat. 2372, 2372 (2010). See United States v. Sutton,

962 F.3d 979, 982 (7th Cir. 2020); First Step Act, § 404(a). The district court recognized

that the new statutory maximum sentence for each of Earnest’s offenses is 20 years 

under 21 U.S.C. § 841(b)(1)(C), and that his new guidelines range would be 210 to 

290 months. See United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020) (district court 

must first calculate new statutory penalties and guidelines range for defendant’s offense

in considering a motion under § 404(b)). 

Counsel also notes that the district court did not hold a plenary resentencing

hearing, as Earnest requested, but appropriately concludes that it would be frivolous to 

base an appeal on that issue. See United States v. Palmer, 600 F.3d 897, 898 (7th Cir. 2010) 

(counsel need only identify issues “worth citing to the appellate court as a possible 

ground of error”). Although some courts have held that a plenary resentencing and a 

hearing are not required, we have not defined the minimum procedures a court must 

follow when deciding a motion under § 404(b). See Corner, 967 F.3d at 665. Even though 
No. 20-2436 Page 3 

Earnest preserved the issue, which remains open, it would still be frivolous to argue in 

his case that he suffered any prejudice from the denial of his request for plenary 

resentencing. Here, the district judge, who originally sentenced Earnest, appointed 

counsel for him and obtained an updated report from the probation office. After full 

briefing, the judge determined that the arguments were “well-articulated in the record.” 

Therefore, any additional procedures would not have affected the court’s decision, and 

it would be frivolous to argue otherwise.

Counsel next properly concludes that, because the court fully considered the 

parties’ arguments and the relevant evidence, it would be frivolous to argue that the 

court abused its discretion. See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2018); 

see also United States v. Shaw, 957 F.3d 734, 740 (7th Cir. 2020) (district court must at least 

consider parties’ arguments and relevant evidence when denying a sentence reduction 

under the First Step Act). A district court has broad discretion in deciding whether to 

reduce a defendant’s sentence under § 404(b) and may consider the factors enumerated 

in 18 U.S.C. § 3553(a), the sentencing guidelines, post-sentencing conduct, and “other 

relevant information about a defendant’s history and conduct.” United States v. Hudson,

967 F.3d 605, 609 (7th Cir. 2020). Here, the district court considered each of these. 

Specifically, it calculated Earnest’s new guidelines range and weighed the § 3553(a) 

factors. It considered Earnest’s argument that he has taken classes and earned his GED 

while in prison, and that he would be over 80 years old when released. But, the court 

explained, while incarcerated, Earnest committed over 80 disciplinary infractions, many 

violent, and was convicted of two counts of assaulting a federal officer. The court thus

concluded that Earnest’s post-conviction behavior shows that he “remains a danger to 

the public.” Given the court’s consideration of these factors, any argument that it 

abused its discretion would be frivolous.

Finally, counsel considers arguing that Earnest received ineffective assistance of 

counsel. Even if there is a right to counsel in this context—an issue we have not 

decided—a record on this issue was never developed. So, Earnest would be unable to 

show on direct appeal that counsel was ineffective. See Massaro v. United States, 538 U.S. 

500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020). 

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.