# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 23, 2013

Decided January 23, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 12

‐ 1717

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

DONTE T. ROBERTS,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Indiana,

Hammond Division.

No. 2:97

‐ CR

‐ 18

Rudy Lozano,

Judge

.

O R D E R

Donte Roberts was sentenced in 1998 to a total of 360 months’ imprisonment on his

convictions for trafficking crack cocaine. The district court granted Roberts’ motion under 18

U.S.C. § 3582(c)(2) and reduced that term to 294 months, though his appointed lawyer had

argued for 236 months. Roberts has filed a notice of appeal, but counsel asserts that the appeal

is frivolous and seeks to withdraw on the basis of Anders v. California

, 386 U.S. 738 (1967). The

right to appointed counsel does not extend to proceedings under § 3582(c)(2), United States v.

Forman

, 553 F.3d 585, 590 (7th Cir. 2009); United States v. Tidwell

, 178 F.3d 946, 949 (7th Cir.

1999), and thus counsel need not have complied with the Anders safeguards before moving to

withdraw, see Pennsylvania v. Finley

, 481 U.S. 551, 554–55 (1987); DiAngelo v. Ill. Dep ʹ t of Pub. Aid

,

891 F.2d 1260, 1262 (7th Cir. 1989). Nevertheless, we invited Roberts to respond to his attorney’s

motion, and he has done so. See C IR

. R. 51(b).

Roberts operated crack houses in Gary, Indiana, during 1996 and early 1997. A jury NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 1717 Page 2

found him guilty of conspiracy and possession with intent to distribute. See 21 U.S.C.

§§ 841(a)(1), 846. At sentencing two of his suppliers testified for the government; one said he

delivered 4.5 ounces of crack to Roberts on 11 occasions (totaling 1.4 kilograms), and the other

reported delivering 18 ounces (about .5 kilogram) each week during the summer and fall of

1996. At that time 1.5 kilograms was the threshold for the highest tier in the drug

‐ quantity

table, U.S.S.G. § 2D1.1(c)(1) (1997), so rather than decide the precise amount, the district court

simply found Roberts responsible for at least 1.5 kilograms. The court calculated an

imprisonment range of 324 to 405 months based on a total offense level of 40 and a criminal

history category of II, and then sentenced him to concurrent terms of 360 months. Roberts

sought a reduced sentence after the Sentencing Commission in 2008 retroactively lowered the

base offense level for his crack offenses, see U.S.S.G. App. C, amends. 706, 713, but that motion

was denied because of his extensive misconduct in prison after sentencing, see United States v.

Roberts

, 344 F. App’x 287, 288–89 (7th Cir. 2009). Roberts tried again after the Commission made

retroactive another favorable amendment in 2011, see U.S.S.G. App. C, amends. 748, 750, 759,

and this time the district court granted his motion. The court revisited its drug

‐ quantity

assessment made at Roberts’ sentencing in 1998, concluded that he was responsible for at least

2.8 kilograms of crack—the threshold for the second

‐ highest tier in the revised drug

‐ quantity

table, U.S.S.G. § 2D1.1(c)(2) (2011)—and calculated a new imprisonment range of 262 to 327

months. The court decided that Roberts now deserved a reduction because his misconduct in

prison had abated after the first § 3582(c)(2) motion was denied, but the court was unwilling

to overlook that misconduct entirely and thus chose a term of 294 months, the middle of the

revised range.

Counsel first considers whether Roberts could argue that the district court erred by

reevaluating the drug quantity. A district court may revise its earlier factual findings when

ruling on a § 3582(c)(2) motion, provided that the new findings are supported by the record and

consistent with the determination made at sentencing. United States v. Davis

, 682 F.3d 596, 612

(7th Cir. 2012); United States v. Duncan

, 639 F.3d 764, 767–68 (7th Cir. 2011). Here the judge

added the total from one supplier (1.4 kilograms) to the sum of just three deliveries from the

other supplier (1.5 kilograms) in concluding that Roberts was responsible for a crack amount

satisfying the threshold of 2.8 kilograms. This determination is supported by the record and is

consistent with the court’s earlier finding that Roberts was responsible for at least 1.5 kilograms

of crack. See Davis

, 682 F.3d at 619; United States v. Woods

, 581 F.3d 531, 539 (7th Cir. 2009). As

counsel recognizes, a contrary argument would be frivolous.

Counsel next analyzes whether Roberts could argue that the district court abused its

discretion by again considering his multiple prison infractions in deciding the suitable degree

of reduction. As counsel correctly concludes, this contention would be frivolous. Roberts had

been sanctioned for over 20 infractions, see Roberts

, 344 F. App’x at 288–89, and the judge was

free to consider this conduct while determining the appropriate extent of reduction, see U.S.S.G.No. 12

‐ 1717 Page 3

§ 1B1.10, cmt. n.1(B)(iii); United States v. Young

, 555 F.3d 611, 613 (7th Cir. 2009); United States

v. Johnson

, 580 F.3d 567, 570 (7th Cir. 2009).

In his Rule 51(b) response, Roberts proposes to argue on appeal that the district court

impermissibly conducted a full resentencing and also erroneously deprived him of the

opportunity to describe his rehabilitation in prison to outweigh his extensive disciplinary

record. The first contention is incorrect—the district judge followed § 1B1.10 and its

commentary—and therefore frivolous. The second contention is frivolous because it

misconstrues our decision in United States v. Neal

, 611 F.3d 399 (7th Cir. 2010). In that case we

remanded the denial of a motion under § 3582(c)(2) because the district court had based its

decision on allegations of prison misconduct without giving the defendant an opportunity to

challenge the accuracy of those allegations. See id. at 402. Here, in contrast, Roberts’ past

misconduct was uncontested, and the parties also agreed that he had not incurred any

additional prison infractions after July 2008 (when his first § 3582(c)(2) motion was denied). The

judge cited this improved prison behavior as a reason to grant Roberts an earlier release. Roberts

does not dispute that his behavior has improved, but rather suggests that he would have asked

for a larger reduction had he known the judge’s rationale in advance. As we explained in Neal

, however, judges do not need to foreshadow their reasoning. 611 F.3d at 401. It is now apparent,

moreover, that Roberts should not have received any reduction on his second motion: Although

the base offense level for 1.5 kilograms of crack further decreased between his first and second

motions, the base offense level for 2.8 kilograms did not, meaning that Roberts was ineligible

for relief under the second retroactive amendment. See United States v. Redd

, 630 F.3d 649, 651

(7th Cir. 2011); United States v. Taylor

, 627 F.3d 674, 675 (7th Cir. 2010). Nevertheless, the

government did not take the position that Roberts was ineligible for a reduction and did not

file a cross

‐ appeal. See United States v. Lawrence

, 535 F.3d 631, 638 (7th Cir. 2008).

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