In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3623

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MASHICA SPANN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin. 

No. 09-Cr-244—Rudolph T. Randa, Judge.

SUBMITTED MAY 2, 2012—DECIDED MAY 29, 2012

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

PER CURIAM. While on probation for a state drug conviction, Mashica Spann met Carlos Hoffman in courtmandated group therapy and joined his heroin-distribution ring. She was indicted in federal court for her role

in the operation and pleaded guilty to conspiracy to distribute heroin, see 21 U.S.C. §§ 846, 841(a)(1), a crime

that presumptively mandated a minimum prison term of

five years because the conspiracy involved 100 or more

grams, id. § 841(b)(1)(B). After rejecting Spann’s argument
2 No. 11-3623

that she was a minimal or minor participant in the

crime, see U.S.S.G. § 3B1.2, the district court calculated her

guidelines imprisonment range as 57 to 71 months

without the mandatory minimum, which made the applicable range 60 to 71 months, see U.S.S.G. § 5G1.1(c)(2);

United States v. Gonzalez, 534 F.3d 613, 615 (7th Cir. 2008).

But the government moved for a sentence below the

mandatory minimum, citing Spann’s substantial assistance in the investigation of Hoffman and others.

See 18 U.S.C. § 3553(e). The court granted the motion

and sentenced Spann to 24 months, less than half of the

mandatory minimum and more than a year below the

government’s most favorable recommendation.

Spann filed a notice of appeal, but her appointed

counsel has concluded that the appeal is frivolous and

seeks permission to withdraw. See Anders v. California, 386

U.S. 738 (1967). Spann has not accepted our invitation

to comment on counsel’s facially adequate submission.

See CIR. R. 51(b). We limit our review to the potential

issues that counsel discusses. See United States v. Schuh,

289 F.3d 968, 973-74 (7th Cir. 2002). Spann does not want

her guilty plea set aside, so counsel properly forgoes

discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d

667, 670-72 (7th Cir. 2002).

Counsel first considers arguing that the district court

undervalued Spann’s cooperation and did not shave

enough time from the statutory minimum. But valuing

substantial assistance given as part of a cooperation

agreement under 18 U.S.C. § 3553(e) is a matter within

the sentencing court’s discretion, and thus counsel
No. 11-3623 3

We express no opinion on whether we similarly would 1

lack jurisdiction over an appellate claim that a district court

undervalued a defendant’s cooperation in granting a motion

under U.S.S.G. § 5K1.1 in a case in which the bottom of the

guidelines imprisonment range was not set by a statutory

(continued...)

rightly concludes that an appellate claim challenging

the reduction as too little would be frivolous because

we lack jurisdiction to review the contention. See

18 U.S.C. § 3742(a); United States v. Thomas, 11 F.3d 732, 735

(7th Cir. 1993); United States v. Shaffer, 993 F.2d 625, 628-

29 (7th Cir. 1993); United States v. Dean, 908 F.2d 215, 217-

18 (7th Cir. 1990). Although these cases predate United

States v. Booker, 543 U.S. 220 (2005), we have explained

in discussing sentence reductions under Federal Rule

of Criminal Procedure 35(b) that Booker did not alter

our limited jurisdiction under 18 U.S.C. § 3742(a), which

is also the source of our jurisdiction here. See United

States v. McGee, 508 F.3d 442, 444-45 (7th Cir. 2007) (concluding that challenging extent of sentence reduction

under Rule 35(b) would be frivolous); see also

United States v. Chapman, 532 F.3d 625, 628 (7th Cir.

2008); United States v. Parker, 543 F.3d 790, 792

(6th Cir. 2008); United States v. Haskins, 479 F.3d 955,

957 (8th Cir. 2007); United States v. McKnight, 448 F.3d

237, 238 (3d Cir. 2006). We see no principled basis to

distinguish sentence reductions given under Rule 35(b)

from those given under § 3553(e), so we would

conclude that we lack jurisdiction over a claim that

the district court should have been more generous in

rewarding Spann for her cooperation.1
4 No. 11-3623

(...continued) 1

minimum. Compare United States v. Anonymous Defendant, 629

F.3d 68, 73-75 (1st Cir. 2010) (concluding that, post-Booker,

appeals courts have jurisdiction over such claims), with

United States v. Berni, 439 F.3d 990, 992-93 (8th Cir. 2006)

(reaching opposite conclusion, though examining district

court’s assessment of defendant’s cooperation as part of

review of sentence’s reasonableness).

Counsel next considers arguing that the district court

erred in rejecting Spann’s contention that she was a

minor or minimal participant in the conspiracy.

See U.S.S.G. § 3B1.2. Though the court might have discussed this guidelines question more extensively, we

agree with counsel that a challenge to the adverse

ruling would be frivolous. When relying on § 3553(e) as

authority to sentence a defendant below a mandatory

minimum, a district court may not reduce the sentence

based on factors other than the defendant’s cooperation. E.g., United States v. Johnson, 580 F.3d 666, 672-73

(7th Cir. 2009); United States v. Winebarger, 664 F.3d 388,

396 (3d Cir. 2011); United States v. Jackson, 577 F.3d 1032,

1036 (9th Cir. 2009); United States v. Burns, 577 F.3d 887,

894 (8th Cir. 2009) (en banc). The bottom of Spann’s

guidelines imprisonment range ultimately was determined by the statutory minimum penalty, see U.S.S.G.

§ 5G1.1(c)(2); Gonzalez, 534 F.3d at 615; United States v.

Tyler, 125 F.3d 1119, 1120 (7th Cir. 1997). Any possible

error in not applying § 3B1.2 was necessarily harmless

because the court sentenced below the mandatory minimum, and any reduction below that minimum had to be

based on cooperation alone.
No. 11-3623 5

Counsel last considers whether Spann could challenge

the substantive reasonableness of her prison sentence

but correctly concludes that such a challenge would be

frivolous. As we have explained, Spann’s sentence falls

below the statutory minimum, and we have no authority

to consider whether the district court should have

deviated further from that minimum to reflect Spann’s

cooperation. Moreover, the district court could not

have deviated further from the minimum based on an

analysis of the factors set forth in 18 U.S.C. § 3553(a).

We thus would have no basis to assail the reasonableness of the sentence.

Accordingly, counsel’s motion to withdraw is

GRANTED, and the appeal is DISMISSED.

5-29-12