United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 16, 2011

Decided February 17, 2011

Before

WILLIAM J. BAUER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No.  10‐2134

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

SCORPIO M. ROBINSON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09‐CR‐147‐C‐01

Barbara B. Crabb,

Judge.

O R D E R

Authorities in Madison, Wisconsin, began investigating Scorpio Robinson after

finding guns and crack cocaine in his girlfriend’s apartment.  An undercover officer made a

series of crack purchases by placing telephone orders with Robinson and receiving

deliveries from his two coconspirators.  Robinson was on electronic monitoring for several

state cases and could not leave his apartment, so he “cooked” the crack and told the others

where to deliver it.  He pleaded guilty to conspiracy to possess and distribute crack, 21

U.S.C. §§ 846, 841(a)(1), which, because the amount of crack was at least 5 grams, carried a

statutory minimum prison term of 5 years, id. §§ 846, 841(b)(1)(B)(iii).  The district court

calculated a guidelines imprisonment range of 108 to 135 months but sentenced Robinson

below that range to 84 months plus 5 years’ supervised release.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No.  10‐2134 Page 2

Robinson filed a notice of appeal, but his appointed lawyer seeks to withdraw

because he cannot identify a nonfrivolous ground to pursue.  See Anders v. California, 386

U.S. 738 (1967).  Robinson has not accepted our invitation to comment on counselʹs

submission.  See CIR. R. 51(b).  We review only the potential issues identified in counselʹs

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

Robinson has given no indication that he wants his guilty plea vacated, so counsel properly

omits discussion of 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 has evaluated whether Robinson might challenge the guidelines calculations

or the length of his prison term but is unable to find a potential issue about either.  As

counsel notes, Robinson agreed with the probation officer’s calculations, which the district

court adopted without change.  The court imposed a prison term 24 months below the low

end of the guidelines range after assessing the factors in 18 U.S.C. § 3553(a) and considering

Robinson’s arguments in mitigation, including his family’s support, the absence of previous

felony convictions or significant jail time, evidence suggesting that he did not have a

constant stream or large quantity of crack available to distribute, and the sentencing

differential between crack and powder cocaine.  Counsel cannot identify any reason to

disregard the presumption of reasonableness applicable to sentences below the guidelines

range, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Pape, 601 F.3d 743,

746 (7th Cir. 2010), nor can we.

Counsel also questions whether Robinson could challenge his prison sentence in

light of the Fair Sentencing Act of 2010, Pub. L. No. 111‐220, § 2(a)(2), 124 Stat. 2372 (2010),

which increased the amounts of crack cocaine necessary to trigger the enhanced statutory

penalties in § 841(b)(1)(B)(iii).  But counsel is correct that an appellate claim based on this

enactment would be frivolous, not only because it was passed after Robinson’s conspiracy

ended and is not retroactive, United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010), but also

because the crack amount found by the district court—at least 35 grams—would yield a 5‐

year minimum even under the amended version of the statute, compare 21 U.S.C.

§ 841(b)(1)(B)(iii) (2006) with § 2(a)(2), 124 Stat. at 2372.

Counselʹs motion to withdraw is GRANTED, and the appeal is DISMISSED.