United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 22, 2010

Decided December 22, 2010

Before

WILLIAM J. BAUER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

   

No. 10‐2239

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

RAYMOND M. DAVIS, SR.,

Defendant‐Appellant.                 

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09‐CR‐94‐BBC‐01

Barbara B. Crabb,

Judge.

O R D E R

Based on a tip from a confidential informant linking Raymond Davis’s son to drug

trafficking and weapons possession, police executed a search warrant for Davis’s home.

During the search Davis pointed police to a handgun and ammunition he stored in his

closet.  Although he knew that his prior felony conviction for conspiring to distribute heroin

made it illegal for him to possess a firearm, Davis told police that he kept the gun for

protection because his family had been the victim of a brutal home invasion.  Police arrested

Davis, and he later pleaded guilty to possession of a firearm as a felon.  See 18 U.S.C.

§ 922(g)(1).  The district court sentenced him to 24 months’ imprisonment, three months

below the bottom of his guidelines range.  Davis appeals, but his appointed lawyer has

moved to withdraw because he cannot identify a nonfrivolous argument to pursue.  See

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10‐2239 Page 2

Anders v. California, 386 U.S. 738 (1967).  Davis has not responded to our invitation to

comment on counsel’s submission, see CIR. R. 51(b), so we confine our review to the two

potential issues identified in counsel’s brief.  See United States v. Schuh, 289 F.3d 968, 973‐74

(7th Cir. 2002).

Counsel first considers whether Davis could argue that the district court erred in

denying his motion to dismiss the indictment.  Based on District of Columbia v. Heller, 128

S. Ct. 2783 (2008), Davis had argued in the district court that 18 U.S.C. § 922(g)(1) was

unconstitutional because it impermissibly infringed on his Second Amendment right to

possess a gun even for purposes of protecting his home and family.  The district court

denied the motion, relying on Heller’s often quoted dictum that “nothing in our opinion

should be taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons.”  128 S. Ct. at 2816‐17.  As counsel notes, any constitutional challenge to § 922(g)(1)

would be foreclosed by the Supreme Court’s recent decision in McDonald v. City of Chicago,

130 S. Ct. 3020, 3047 (2010) (plurality opinion), where it “repeat[ed] [its] assurances” that

Heller’s dictum regarding disqualification of firearms possession by felons was valid.  See

also United States v. Williams, 616 F.3d 685, 691‐92 (7th Cir. 2010), cert. denied, 2010 WL

4363726 (U.S. Dec. 6, 2010); United States v. Skoien, 614 F.3d 638, 640‐41 (7th Cir. 2010) (en

banc), petition for cert. filed, (U.S. Oct. 12, 2010) (No. 10‐7005).  Thus, we agree with counsel

that it would be frivolous to challenge the district court’s denial of Davis’s motion.  

Counsel has also evaluated whether Davis could challenge the reasonableness of his

sentence.  But as counsel correctly points out, the district court properly calculated Davis’s

guidelines range, and there is no basis for disturbing the presumption of reasonableness we

accord his below‐range sentence.  See Rita v. United States, 551 U.S. 338, 347 (2007); United

States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010).  The district court calculated a guidelines

range of 27 to 33 months based on a category II criminal history and a total offense level of

17, which included a three‐point reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1.  In deciding to impose a 24‐month sentence, the court considered the sentencing

factors under 18 U.S.C. § 3553(a), emphasizing the serious nature of the crime, Davis’s need

for rehabilitative programs in light of his lengthy history of drug addiction and his prior

felony conviction for drug conspiracy.  The court rejected Davis’s request to be sentenced to

a term of probation or home detention, but acknowledged his recent success in treating his

heroin addiction, his strong family ties, and his long history of steady employment.  Under

these circumstances, Davis’s 24‐month sentence was reasonable, and it would be frivolous

to argue otherwise.  

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