United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 31, 2007

Decided November 14, 2007

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 06-4111

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DELROY BROWN,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin 

No. 06-CR-114

William C. Griesbach,

Judge. 

O R D E R

Delroy Brown pleaded guilty to possessing MDMA (“ecstasy”) with intent to

distribute and illegally reentering the United States after removal. See 21 U.S.C.

§ 841(a)(1), (b)(1)(C); 8 U.S.C. § 1326(a), (b)(2). The district court sentenced him to

188 months’ imprisonment, the bottom of the Sentencing Guidelines range. Brown

filed a notice of appeal, but his appointed counsel now moves to withdraw on the

ground that he cannot discern a nonfrivolous basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). Brown declined our invitation to comment on

counsel’s motion, see Cir. R. 51(b), and therefore our review is limited to the

potential issues raised by counsel in his facially adequate supporting brief, see

United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-4111 Page 2

Counsel first considers whether Brown could challenge the voluntariness of

his guilty pleas. According to counsel’s brief, though, Brown does not wish to

withdraw his guilty pleas, so counsel appropriately does not pursue this argument

further. See United States v. Knox, 287 F.3d 667, 669-71 (7th Cir. 2002).

Counsel next considers whether Brown could challenge the reasonableness of

his sentence. See United States v. Booker, 543 U.S. 220, 260-63 (2005). We

presume that a sentence within the correctly calculated guidelines range is

reasonable. See Rita v. United States, 127 S.Ct. 2456, 2462-65 (2007) (holding that

“a court of appeals may apply a presumption of reasonableness to a district court

sentence that reflects a proper application of the Sentencing Guidelines”); United

States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And the standard for

determining reasonableness is whether the district court provided a reasoned basis

for its sentence after considering the relevant sentencing factors found in 18 U.S.C.

§ 3553(a). See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006). Here, as

counsel notes, the district court correctly applied the guidelines, considered the

range of sentencing factors provided by 18 U.S.C. § 3553(a), and ultimately

sentenced Brown at the bottom of the guidelines imprisonment range of 188 to 235

months. The court observed that Brown had compiled a lengthy criminal record in

less than ten years in the United States; the frequency and severity of his crimes

“displayed a total disregard for the law” and thus warranted a sentence within, and

not below, the advisory guidelines range. Given the court’s careful deliberation at

sentencing, counsel cannot detect any reason to upset Mykytiuk’s presumption of

reasonableness in the present case, nor can we. See United States v. Gammicchia,

498 F.3d 467, 468-69 (7th Cir. 2007); United States v. Gama-Gonzalez, 469 F.3d

1109, 1110 (7th Cir. 2006) (“It will be the rare sentence indeed that was required

under the Guidelines before Booker but forbidden afterward, when discretion has

gone up rather than down.”) (emphasis in original); Mykytiuk, 415 F.3d at 608.

Counsel also considers whether Brown could argue that the district court

erred by classifying him as a career offender. Prior to sentencing, Brown objected to

his classification as a career offender on the grounds that his relevant prior

convictions were not charged in the indictment, proved to a trier of fact beyond a

reasonable doubt, or admitted in his guilty pleas, and therefore they could not

operate to increase his guidelines range without violating his rights under the Fifth

and Sixth Amendments. Yet Brown did admit to those convictions in his plea

agreement, a point that he conceded at the sentencing hearing. Regardless, a judge

may find the fact of a prior conviction when applying the guidelines, and prior

convictions need not be found beyond a reasonable doubt for sentencing purposes.

Booker, 543 U.S. at 243-44; Almendarez-Torres v. United States, 523 U.S. 224, 239-

47 (1998); United States v. Spence, 450 F.3d 691, 696-97 (7th Cir. 2006); United

States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005); United States v. Washington,

417 F.3d 780, 788 (7th Cir. 2005). The constitutional problem that counsel
No. 06-4111 Page 3

identifies arises only “if judicial factfinding [other than the fact of a prior conviction]

results in a sentence exceeding the statutory maximum, for example, or if such

factfinding requires a particular sentence in the context of a mandatory sentencing

guidelines scheme.” Bryant, 420 F.3d at 656; see Booker, 543 U.S. at 244 (“Any fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.”) (emphasis added). Counsel is correct that any argument to the contrary

would be frivolous.

Additionally, counsel considers whether Brown could challenge the district

court’s failure to specify a maximum number of drug tests when it imposed

participation in a drug and alcohol testing program as a condition of supervised

release. A court’s authority to compel drug testing upon supervised release is set

forth in 18 U.S.C. § 3583(d), which provides that the court alone must determine

the number of drug tests required of the defendant. See United States v. Bonanno,

146 F.3d 502, 511 (7th Cir. 1998). Failure to specify a maximum number of drug

tests can constitute error if the omission improperly delegates too much authority to

the probation office to direct the drug testing. Id. A defendant who does not object

at sentencing to the absence of a ceiling on drug testing, however, forfeits the error. 

See United States v. Tejeda, 476 F.3d 471, 473-74 (7th Cir. 2007). Federal Rule of

Criminal Procedure 52(b) authorizes a court of appeals to correct a forfeited error so

long as it is a “plain error that affects substantial rights.” Fed. R. Crim. P. 52(b)

(emphasis added). But a court’s failure to specify a maximum number of drug tests

is not a plain error. Tejeda, 476 F.3d at 473-76. Because Brown did not object at

sentencing, we agree with counsel that it would be frivolous to raise the error on

appeal.

Finally, our review of the record revealed that at sentencing the district court

incorrectly relied on the 2005 Guidelines Manual eight days after the 2006

Guidelines Manual took effect. See U.S.S.G. § 1B1.11. But the two manuals are

identical with respect to Brown; under both, his final offense level was 31 and his

criminal history category VI, yielding an imprisonment range of 188 to 235 months. 

Thus, any argument on this ground would be frivolous as well.

We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.