United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 10, 2009

Decided December 11, 2009

Before

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 09‐2078

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JOHN H. MASON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 08‐CR‐148‐C‐01

Barbara B. Crabb,

Chief Judge.

O R D E R

John Mason sold an undercover police officer 6 grams of crack cocaine.  He pleaded

guilty to distributing crack, 21 U.S.C. § 841(a)(1), and was sentenced to 180 months’

imprisonment.  Mason appeals, but his appointed lawyers move to withdraw because they

are unable to identify any nonfrivolous argument to pursue.  See Anders v. California, 386

U.S. 738 (1967).  Mason opposes dismissal of his appeal.  See CIR. R. 51(b).  We confine our

review to the potential issues outlined in counsel’s facially adequate brief and Mason’s

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

Counsel inform us that Mason does not wish to challenge his guilty plea, so the

lawyers properly refrain from discussing possible arguments about the voluntariness of the

plea or the adequacy of the plea colloquy.  See United States v. Knox, 287 F.3d 667, 671‐72 (7th

Cir. 2002).  Instead, counsel’s Anders submission and Mason’s response identify potential

defects in the sentence imposed.  In the presentence investigation report, the probation

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 09‐2078 Page 2

officer set a base offense level of 32 because the relevant conduct involved at least 150 grams

of crack, see U.S.S.G. § 2D1.1(c)(4), and added 2 levels for possession of a firearm, see id.

§ 2D1.1(b)(1).   Mason’s status as a career offender yielded an identical level 34 because the

statutory maximum for distributing 5 or more grams of crack is 40 years. See 21 U.S.C.

§ 841(b)(1)(B)(iii); U.S.S.G. § 4B1.1(b).  The probation officer subtracted 3 levels for

acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of 31.  A level 31,

combined with the category VI criminal history that resulted from Mason’s career‐offender

status, see id. § 4B1.1(b), produced a guidelines imprisonment range of 188 to 235 months.

The district court agreed that Mason was a career offender but imposed a below‐range

sentence of 180 months’ imprisonment.

Both defense counsel and Mason evaluate whether Mason could challenge his

classification as a career offender.  Mason’s only argument is that his two prior convictions

in Cook County, Illinois, do not qualify as controlled substance offenses.  But this argument

would be frivolous because his prior convictions are for the manufacture or delivery of a

controlled substance, a Class 2 felony under 720 ILL. COMP. STAT. 570/401, and the

manufacture or delivery of marijuana, a Class 3 felony under 720 ILL. COMP. STAT. 550/5,

and both offenses were punishable by more than a year in prison.  Thus, the convictions

qualify as controlled substance offenses for career‐offender purposes.  See U.S.S.G.

§ 4B1.2(b); United States v. Kelly, 519 F.3d 355, 365 (7th Cir. 2008).

Counsel and Mason also consider whether Mason could argue that the probation

officer overstated the drug quantity and misapplied the upward adjustment for possession

of a firearm when calculating the offense level under U.S.S.G. § 2D1.1.  But this contention

would be frivolous because the district court relied on the career‐offender guideline, not

§ 2D1.1.  The career‐offender guideline always trumps § 2D1.1 if a higher offense level

results, so in this case it would make no difference whether the probation officer made a

mistake in applying § 2D1.1. See U.S.S.G. § 4B1.1(b); United States v. Clanton, 538 F.3d 652,

660 (7th Cir. 2008); United States v. Spence, 450 F.3d 691, 695 (7th Cir. 2006).

Finally, counsel assess whether Mason could argue that 180 months’ imprisonment is

an unreasonable sentence.  A below‐guidelines sentence is presumptively reasonable, United

States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and counsel have not suggested any reason

why that presumption would not hold true as to Mason.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.