United States of America v. John Dunn

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
June 16, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1034
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOHN DUNN,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 07‐cr‐117‐jcs‐1
John C. Shabaz,
Judge.
O R D E R
John Dunn pleaded guilty to one count of conspiracy to possess crack with intent to
distribute. See 21 U.S.C. §§ 846, 841(a)(1). The district court adopted the probation officer’s
finding that Dunn was responsible for 325 grams of crack. Applying the sentencing
guidelines that went into effect in November 2007, the court calculated a guidelines
imprisonment range of 108 to 135 months, but because Dunn was subject to a mandatory
minimum sentence of 10 years’ imprisonment, the effective guidelines range was 120 to 135
months. See 21 U.S.C. § 841(b)(1)(A). The court sentenced him to a prison term of 130
months to be followed by five years of supervised release. Dunn filed a notice of appeal,
but appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738
(1967), because he cannot discern a nonfrivolous basis for appeal. Dunn has not accepted
our invitation to comment on counsel’s motion. See CIR. R. 51(b). Because counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 2 --

No. 08‐1034 Page 2
supporting brief is facially adequate, we limit our review to the potential issue identified in
counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel has identified only one potential issue: whether Dunn could challenge the
reasonableness of his sentence based on Kimbrough v. United States, 128 S. Ct. 558 (2007).
That decision authorizes a sentencing court, even in a typical case, to “consider the disparity
between the Guidelines’ treatment of crack and powder cocaine offenses” when evaluating
whether a particular sentence would be greater than necessary to achieve the goals of
sentencing. Id. at 564. Counsel concludes that it would be frivolous for Dunn to raise this
issue, but we cannot agree. Dunn was sentenced nine days after Kimbrough was decided,
but neither his attorney—the same one who is representing him on appeal—nor the district
court mentioned the decision or explained the court’s authority to consider the crack‐to‐
powder cocaine disparity embedded in the guidelines when crafting an appropriate
sentence. And although the district court was not permitted to sentence Dunn below the
guidelines range because the low end of the guidelines range was constrained by statute, see
United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008); United States v. Duncan, 479 F.3d
924, 930 (7th Cir. 2007), Dunn received a sentence 10 months longer than the statutory
minimum. Thus, he could at least argue, under a plain‐error standard, that the sentencing
court should have taken its discretion under Kimbrough into account. Cf. United States v.
Padilla, No. 06‐4370, 2008 WL 833994, at *7 (7th Cir. Mar. 31, 2008); United States v. Taylor,
No. 06‐4123, 2008 WL 782739, at *1‐3 (7th Cir. Mar. 26, 2008).
Counsel’s motion to withdraw is GRANTED. But our conclusion that Dunn’s appeal
is not frivolous means that he still is entitled to representation on appeal. See Penson v. Ohio,
488 U.S. 75, 84‐85 (1988) (noting that appellate court’s “determination that arguable issues
were presented by the record . . . created a constitutional imperative that counsel be
appointed”). By separate order, therefore, we will appoint another lawyer for him and set a
briefing schedule.

-- 2 of 2 --