Chicago, Illinois 60604 Submitted July 27, 2009 Decided June 21, 2010 Before… v. District of Illinois TYLER M. HORRELL, No. 99 CR 40006

* Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this appeal was
submitted to the panel of judges that disposed of Horrell’s direct appeal of his
conviction and sentence. See United States v. Horrell, No. 99‐3178, 2000 WL 701761
(7th Cir. May 26, 2000) (unpublished).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 27, 2009 *
Decided June 21, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐1888
UNITED STATES OF AMERICA,
Plaintiff‐Appellee, Appeal from the United States
District Court for the Southern
v. District of Illinois
TYLER M. HORRELL, No. 99 CR 40006
Defendant‐Appellant.
G. Patrick Murphy, Judge
ORDER
Defendant‐Appellant Tyler M. Horrell appeals the reduced sentence that the
district court imposed pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive
changes to the provisions of the Sentencing Guidelines for offenses involving crack
cocaine. His counsel, discerning no non‐frivolous basis for the appeal, has sought leave
to withdraw from representing Horrell pursuant Anders v. California, 386 U.S. 738, 744‐
45, 87 S. Ct. 1396, 1400 (1967). We grant counsel’s motion to withdraw and dismiss the
appeal.
NON-PRECEDENTIAL DECISION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1888 2
1 Horrell did submit a letter to the district court in which he indicated that he had
reviewed his counsel’s Anders brief. R. 164. The record on appeal has been
supplemented with a copy of that letter. R. 166. In the letter, Horrell identified no
issues that he might wish to raise in this appeal and instead essentially deferred to
his counsel’s judgment as to the merits of the appeal. R. 164 at 1 (“after reading his
brief I do understand his point about the merit of my issues”).
Horrell pleaded guilty to conspiring to distribute and to possess with the
intent to distribute crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. After finding that
Horrell was accountable for a total of 283.4 grams of crack, the district court ordered
him to serve a prison term of 293 months. On appeal, we upheld the court’s drug‐
quantity calculation and affirmed Horrell’s sentence in an unpublished order.
United States v. Horrell, No. 99‐3178, 2000 WL 701761 (7th Cir. May 26, 2000).
After the Sentencing Guidelines were amended to retroactively reduce the
sentencing ranges for offenses involving crack cocaine, see U.S.S.G. App. C,
Amendments 706, 711, 712, 713 (Nov. 1, 2007 & March 3, 2008), Horrell filed a
motion to reduce his sentence pursuant to section 3852(c)(2). The Guidelines as
amended advised a sentence within the range of 188 to 235 months, as opposed to
the range of 235 to 293 months with which the district court was confronted at the
time of Horrell’s original sentencing. Horrell’s counsel requested a sentence at the
bottom of the new range, whereas the government urged the court to impose a
sentence at the top of that range. After hearing the parties’ arguments and taking
into account the evidence concerning Horrell’s conduct since the original sentencing,
which included Horrell’s participation in a variety of self‐improvement courses as
well as a victim‐impact course, the court reduced Horrell’s sentence to a term of 210
months, roughly in the middle of the new sentencing range. R. 154.
Horell has appealed the new sentence, but his counsel has identified no issue
to pursue on his behalf that (in counsel’s view) is not frivolous. His counsel has
asked to be released from representing Horrell and has filed a brief in accord with
the dictates of Anders. We invited Horrell to respond to his counsel’s motion, see
Circuit Rule 51(b), but Horrell has not filed a response identifying any grounds on
which he believes his new sentence should be vacated. 1 The Anders brief is adequate
on its face. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
We therefore restrict our review to the issues identified in that brief. See United States
v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).

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No. 09‐1888 3
Counsel first considers whether Horrell has a non‐frivolous basis on which to
challenge the reasonableness of his reduced sentence. See, e.g., United States v. Scott,
555 F.3d 605, 608 (7th Cir.) (sentences are reviewed for reasonableness pursuant to an
abuse of discretion standard), cert. denied, 130 S. Ct. 341 (2009); see also United States v.
Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765 (2005); United States v. Paladino, 401 F.3d
471, 484 (7th Cir. 2005). In assessing the propriety of a sentence, we consider first
whether the district court committed any significant procedural error and second
whether the sentenced imposed is substantively reasonable. Scott, 555 F.3d at 608
(citing United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008)). The record lends no
support to the possibility of a procedural error: The district court properly
calculated the new sentencing range, afforded both parties the opportunity to
present their arguments as to what the new sentence should be, properly understood
its discretionary authority to select a lesser sentence under section 3582(c)(2),
considered the sentencing criteria set forth in 18 U.S.C. § 3553(a) to the extent they
were consistent with section 3582(c)(2), and gave an adequate explanation for the
sentence it imposed. See Scott, 555F.3d at 608. As for substantive reasonableness, the
sentence that the court imposed was within the Guidelines range, and we therefore
presume it to be reasonable. See Rita v. United States, 551 U.S. 338, 347‐48, 127 S. Ct.
2456, 2462‐63 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
None of the mitigating factors cited below by Horrell and his attorney in support of
a sentence at the low end of the Guidelines range (including his coursework in
prison, his volunteer work, his reassignment to a low‐security facility, his progress in
paying off the fine and special assessments imposed by the court, and the continuing
disparity in penalties for crimes involving crack versus powder cocaine) is so
compelling as to rebut that presumption, particularly in view of a number of
aggravating factors, among them the fact that Horrell was the most culpable of those
charged in the cocaine conspiracy to which he pleaded guilty, his attempt to suborn
perjury from his seventy‐one year‐old aunt at the original sentencing, and his own
testimony at that sentencing (which the district court deemed incredible) attempting
to minimize the extent of his relevant conduct. When it imposed the reduced
sentence, the court noted that this was the term to which it would have sentenced
Horrell in the first instance “but for his particularly egregious behavior.” R. 159 at
12‐13. Any challenge to the reasonableness of the sentence would be frivolous. See
United States v. Gammicchia, 498 F.3d 467, 468 (7th Cir. 2007) (“[i]t will be the rare
sentence indeed that was required under the Guidelines before Booker but forbidden
afterward, when discretion has gone up rather than down”) (quoting United States v.
Gama‐Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006) (emphasis in original)); see also id.

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No. 09‐1888 4
(challenges to within‐Guidelines sentence will be in vain in most cases; appellate
counsel should file Anders brief “rather than waste the court’s time on a lost cause”).
Counsel also considers whether the district court may have been mistaken in
believing that it was constrained in resentencing Horrell by the low end of the
reduced Guidelines range. R. 159 at 3‐4; see U.S.S.G. § 1B1.10(b)(2)(A) & (B) (policy
statement) (when resentencing defendant pursuant to section 3582(c)(2), court shall
not impose sentence below minimum of amended Guidelines range unless original
term of imprisonment was also below minimum called for by then‐applicable range).
Horrell had filed a pro se request that the court consider a sentence below the low
end of the new range, R. 147, but the court properly concluded that because the
original sentence was within the Guidelines range, it had no authority to impose a
new sentence below the amended range, R. 153; R. 159 at 3‐4. § 1B1.10(b)(2)(A); see
Dillon v. United States, ‐‐‐ S. Ct. ‐‐‐, 2010 WL 2400109 (U.S. June 17, 2010) (Booker does
not apply to § 3582 proceedings, and so limitations that Guidelines § 1B1.10 imposes
on such proceedings are mandatory rather than advisory); id. at *6 (“Only if the
sentencing court originally imposed a term of imprisonment below the Guidelines
range does § 1B1.10 authorize a court proceeding under § 3582(c)(2) to impose a term
‘comparably’ below the amended range.”).
For these reasons, we agree with counsel that there is no non‐frivolous basis on
which Horrell might challenge his reduced sentence. We therefore GRANT
counsel’s motion to withdraw and DISMISS the appeal.

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