# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 10, 2010

Decided March 11, 2010

Before

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 09

‐ 3014

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

EDGAR J. HOLDER,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 08

‐ CR

‐ 156

Barbara B. Crabb,

Chief Judge.

O R D E R

In the sprawling expanses of the market for crack cocaine, Edgar Holder occupied a

cozy corner in southern Wisconsin. His operation involved purchasing large quantities of

crack in Chicago and retailing it in Janesville, Wisconsin. He recruited “runners” to sell the

drugs in Wisconsin, and one of them was persuaded by investigators to help the

government build a case against Holder. Holder was arrested after making a series of

controlled buys with individuals working at his direction. He pleaded guilty to one count

of conspiring to possess with intent to distribute 50 or more grams of crack cocaine, see

21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 200 months’ imprisonment. Holder filed a

notice of appeal, but his counsel, having concluded that the appeal is frivolous, seeks

permission to withdraw under Anders v. California

, 386 U.S. 738, 744 (1967). Since Holder NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 3014 Page 2

did not respond to his counsel’s Anders submission, we review only the issues raised in

counsel’s brief, which is facially adequate. See United States v. Garcia

, 580 F.3d 528, 543 (7th

Cir. 2009).

Counsel first considers whether Holder could challenge the reasonableness of his

sentence. The court properly calculated the guidelines range and sentenced him to

200 months’ imprisonment, ten months below the bottom of his range. However,

challenging a below

‐ range sentence as unreasonably high is generally a futile endeavor, see

United States v. Noel

, 581 F.3d 490, 500 (7th Cir. 2009); United States v. Wallace

, 531 F.3d 504,

507 (7th Cir. 2008), and we find nothing in the record to suggest that Holder’s case presents

an exception. The court properly considered the factors in 18 U.S.C. § 3553(a), fixing its

attention on Holder’s personal background and criminal history. See id

. § 3553(a)(1). With

six drug

‐ related convictions, Holder, the court said, appeared to be “the epitome of a career

offender.” And given his long pattern of criminal conduct, the court was not persuaded

that his disadvantaged personal background warranted a further reduction. Accordingly,

we agree with counsel that it would be frivolous to argue that Holder’s sentence was

unreasonable.

Counsel also considers arguing that the district court denied Holder the right of a

meaningful allocution in violation of Federal Rule of Criminal Procedure 32. He examines

whether the court might have erred when it cut short the statement Holder had prepared

after allowing him to read from it at length (it took up 16 pages in the sentencing transcript).

Holder did not raise this objection at sentencing, so we would review it for plain error.

United States v. Luepke

, 495 F.3d 443, 448 (7th Cir. 2007). Under Federal Rule of Criminal

Procedure 32(i)(4), Holder had a right at sentencing to make a statement and present any

information in mitigation of the sentence. F ED

. R. C RIM

. P. 32(i)(4)(A)(ii); United States v.

Alden

, 527 F.3d 653, 663 (7th Cir. 2008).

We agree with counsel that a Rule 32 challenge would be frivolous. The right to

speak at allocution is not without limits on time or content. Alden

, 527 F.3d at 663

(allocution is not the proper time to reargue the merits); United States v. Li

, 115 F.3d 125, 133

‐

34 (2d Cir. 1997) (a fifteen

‐ to twenty

‐ minute allocution generally is enough to satisfy Rule

32) ; United States v. Eibler

, 991 F.2d 1350, 1357 (7th Cir. 1993) (no right to in camera

allocution); United States v. Aquilla

, 976 F.2d 1044, 1054 (7th Cir. 1992) (defendant does not

have a right to address the court at any particular time during sentencing). The sentencing

judge was patient with Holder, allowing him to speak for what amounted to 14 pages in the

sentencing transcript before encouraging him to “wind it up.” Holder agreed, and then

forged on for two additional transcript pages, stopping only to ask if he could read the last

page. The court acted within its discretion in concluding that Holder had received a

meaningful opportunity to present his case for a lenient sentence. See Alden

, 527 F.3d at 663;No. 09

‐ 3014 Page 3

see also Luepke

, 495 F.3d at 450 (“‘Rule 32[] does not purport to set out a script that the

district courts must follow when advising defendants of their right of allocution. Instead,

the substance of what occurred is what counts.”’ (quoting United States v. Williams

, 258 F.3d

669, 674 (7th Cir. 2001))).

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