United States of America v. Precious D. Proctor

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008
Decided May 27, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2822
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
PRECIOUS D. PROCTOR,
Defendant‐Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 06‐10105‐001
Michael M. Mihm,
Judge.
O R D E R
Precious Proctor pleaded guilty to possessing crack cocaine with intent to distribute.
See 28 U.S.C. § 841(a)(1), (b)(1)(B). At sentencing the district court calculated Proctor’s base
offense level to be 28, see U.S.S.G. § 2D1.1(c)(6), and then subtracted three levels for
acceptance of responsibility, see id. § 3E1.1. The resulting total offense level of 28, combined
with Proctor’s criminal history category of V, yielded an imprisonment range of 100 to 125
months. Despite this suggested range, Proctor faced a statutory minimum of 120 months,
see 28 U.S.C. § 841(b)(1)(B). After considering the governmentʹs motion for a sentence below
that minimum based on Proctor’s substantial assistance to authorities, see 18 U.S.C.
§ 3553(e); U.S.S.G. § 5K1.1, the court imposed a 108‐month term as recommended by the
government. The court, however, concluded that it lacked discretion to grant Proctor’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2822 Page 2
request for a further reduction below the statutory minimum for reasons other than her
substantial assistance.
Proctor appeals, but her appointed counsel has moved to withdraw because he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Proctor declined our invitation to respond to counsel’s motion, see CIR. R. 51(b), but instead
moved for the appointment of new counsel. Our review is limited to the potential issues
identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002). Proctor informed counsel that she does not wish to have her guilty plea set
aside, and therefore counsel appropriately omits from his brief any discussion of the
adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287
F.3d 667, 670‐72 (7th Cir. 2002).
Counsel considers whether the district court erred when it held that the only basis
for imposing a sentence below the statutory minimum is the defendant’s substantial
assistance to authorities. The district court’s holding is consistent with our decisions prior
to United States v. Booker, 543 U.S. 220 (2005), see United States v. Crickon, 240 F.3d 652, 655
(7th Cir. 2001); United States v. DeMaio, 28 F.3d 588, 591 (7th Cir. 1994), but Proctor argued at
sentencing that Booker overruled those decisions and mandated that a sentencing court
consider all the factors under § 3553(a) when ruling on the government’s motion to sentence
below a statutory minimum. Although we have not revisited this issue in the wake of
Booker, “a ground of appeal can be frivolous even if there is no case on point.” United States
v. Lopez‐Flores, 275 F.3d 661, 662‐63 (7th Cir. 2001). The plain language of § 3553(e) permits
a district court to sentence below a statutory minimum in response to a motion from the
government only “so as to reflect a defendant’s substantial assistance.” See Crickon, 240 F.3d
at 655 ; DeMaio, 28 F.3d at 591. Booker made the Sentencing Guidelines advisory; it had no
impact on a district court’s authority to sentence below a statutory minimum. See United
States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007). Indeed, Congress has limited that
authority to occasions in which a defendant substantially assists the government, as all the
circuits to address this issue after Booker have held. See United States v. Mangaroo, 504 F.3d
1350, 1355‐56 (11th Cir. 2007); United States v. Williams, 474 F.3d 1130, 1132 (8th Cir. 2007);
United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). We agree and therefore concur
with counsel that any argument to the contrary would be frivolous.
As a final point, we note that Proctor’s case is not affected by Kimbrough v. United
States, 128 S. Ct. 558 (2007), because Proctor faced a statutory minimum sentence. Although
Kimbrough clarified that a district court may consider the crack/powder cocaine ratio when
deciding whether to impose a sentence outside the suggested guidelines range, a district
court must still observe statutory minimums. See Kimbrough, 128 S. Ct at 573; see also United
States v. Taylor, No. 06‐4163, 2008 WL 782739 (7th Cir. Mar. 26, 2008). And as we explained

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No. 07‐2822 Page 3
above, the only time a court may sentence below the statutory minimum is when the
government files a motion to waive the minimum sentence based on the defendant’s
substantial assistance to authorities. Accordingly, we GRANT counselʹs motion to
withdraw and DISMISS the appeal. Proctor’s motion for the appointment of substitute
counsel is DENIED.

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