# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 19, 2008

Decided March 19, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

KENNETH F. RIPPLE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 06

‐ 4356

Appeal from the United States District

UNITED STATES OF AMERICA, Court for the Central District of

Plaintiff

‐ Appellee , Illinois.

v. No. 05

‐ 30096

DONDI McINTOSH, Jeanne E. Scott,

Defendant

‐ Appellant

. Judge.

O R D E R

Dondi McIntosh pleaded guilty to conspiracy to distribute at least five kilograms of

cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(a)(ii), and use of a telephone in a drug

offense, see 21 U.S.C. § 843(b). The district court found that McIntosh was a career offender

because of his prior convictions for aggravated assault and second

‐ degree murder, resulting

in an offense level of 37 and a criminal history category of VI. See United States v. Otero

, 495

F.3d 393, 400 (7th Cir. 2007). The court applied a three

‐ level reduction for acceptance of

responsibility and determined that the applicable guidelines range for McIntosh’s offense NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 06

‐ 4356 Page 2

was 262 to 327 months’ imprisonment. After considering the factors contained in 18 U.S.C.

§ 3553(a), and a motion from the government for a reduced sentence premised upon

McIntosh’s cooperation, the court imposed a sentence of 235 months.

McIntosh filed a notice of appeal, but his counsel now moves to withdraw because

he cannot discern a non

‐ frivolous basis for appeal. See Anders v. California

, 386 U.S. 738

(1967). We invited McIntosh to respond to counsel’s motion, see C IR

. R. 51(b), but he has not

done so. Counsel’s supporting brief is adequate, so we limit our review to the potential

issues it identifies. See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

Counsel first considers whether McIntosh could challenge the voluntariness of his

guilty plea. Counsel is correct, however, that he cannot consider such a challenge because,

after discussing the appeal with McIntosh, McIntosh stated that he did not wish to pursue

the argument. See United States v. Knox

, 287 F.3d 667, 670

‐ 71 (7th Cir. 2003). Accordingly,

we examine it no further.

Counsel next considers whether McIntosh could argue that the district court erred

when it failed to specify the number of drug tests to which he must submit during his

supervised release. Counsel is correct that this argument would be frivolous. McIntosh did

not object to the court’s mistake at sentencing, and we have already held that the failure to

set the number of drug tests is not a plain error that we may review on appeal. See United

States v. Tejeda

, 476 F.3d 471, 473

‐ 76 (7th Cir. 2007).

Counsel also considers whether McIntosh could argue that the district court should

have used a lower sentencing range because, as he claimed at sentencing, he played only a

minor role in his conspiracy offense. The district court found otherwise. But even if this

finding were clearly erroneous, an argument for resentencing on this basis would be

frivolous. Because McIntosh was sentenced as a career offender, guideline reductions for

minimal or minor roles do not apply to him. See Otero

, 495 F.3d at 401 n.4; United States v.

Ward

, 144 F.3d 1024, 1036 (7th Cir. 1998).

Counsel also examines McIntosh’s argument that the career

‐ offender enhancement to

his sentencing guidelines range was based on facts (his prior convictions) that were not

proven beyond a reasonable doubt or admitted, thereby violating the Constitution. In the

district court, McIntosh wished to preserve this argument by contending that Almendarez

‐

Torrez v. United States

, 523 U.S. 224 (1998), which forecloses this type of challenge, was

wrongly decided. Counsel is correct that to reiterate this argument on appeal would be

frivolous because we have repeatedly held that Almendarez

‐ Torres remains the governing

law unless and until the Supreme Court overrules it. See United States v. Hendrix

, 509 F.3d

362, 375 (7th Cir. 2007).No. 06

‐ 4356 Page 3

Lastly, counsel considers whether McIntosh could argue that his sentence was

unreasonable. At trial, McIntosh argued that his career

‐ offender status overstated the

seriousness of his offense and criminal history, as well as his likelihood of committing

further crimes. He pointed to his GED and 38 units of college credit, his status as a good

employee and successful assistant manager at two nursing homes, his lack of drug use, and

the evidence that he is a devoted husband and father. He asserted that no more than ten

years would necessary to accomplish the goals of sentencing.

Nonetheless, counsel is correct that disputing the reasonableness of McIntosh’s

sentence would be frivolous. The sentence was below the presumptively

‐ reasonable

guidelines range, see Otero

, 495 F.3d at 401

‐ 02, and as such it is difficult to conceive of how

such a sentence could be unreasonable, see United States v. Tahzib

, 513 F.3d 692, 695 (7th Cir.

2008). Here, the district court correctly calculated his guidelines range and then considered

it in light of the § 3553(a) factors. Specifically, the court noted that McIntosh’s care for his

family, while simultaneously selling drugs illegally, showed him to be living a double life.

It expressed concern that McIntosh’s likelihood of recidivism was high, considering that he

committed his crimes despite all the good that he claimed was in his life. The court

emphasized his serious criminal record as well as the large amount of drugs that he

distributed. Thus, the court discharged its duty to balance any mitigating factors against

retributive and deterrent ends. See United States v. McIlrath

, 512 F.3d 421, 423 (7th Cir. 2008);

United States v. Neal

, 512 F.3d 427, 438

‐ 39 (7th Cir. 2008) ; United States v. Mendoza

, 510 F.3d

749, 754

‐ 55 (7th Cir. 2008).

Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.