United States of America v. Jason Foster

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2009
Decided November 17, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐4121
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON FOSTER,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 07 CR 772
Virginia M. Kendall,
Judge.
O R D E R
Jason Foster pleaded guilty to knowingly and intentionally distributing more than
fifty grams of crack. See 21 U.S.C. § 841(a)(1). He was sentenced to 130 months in prison,
well below the guidelines range of 262 to 327 if the district court had applied the career‐
offender adjustment. Foster appeals, but his appointed counsel has moved to withdraw
because he cannot identify any nonfrivolous argument to pursue on appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). Foster declined our invitation to comment on his
counsel’s submission, see CIR. R. 51(b), and thus we confine our review to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
974 (7th Cir. 2002).
Counsel begins by telling us that Foster does not wish to withdraw his plea and thus
properly refrains from discussing possible challenges to the voluntary nature of the plea or
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐4121 Page 2
the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir.
2002).
Regarding Foster’s sentence, counsel first considers whether Foster could argue that
the district court should have used the 2006 version of the sentencing guidelines rather than
the 2007 version. Under the former Foster would not qualify as a career offender, see
U.S.S.G. § 4B1.1 (2006), but under the latter he does, see U.S.S.G. § 4B1.1 (2007). Counsel
correctly concludes that this argument would be frivolous. The district court was required
to use the 2007 version because that was in effect at the time of Foster’s sentencing. See 18
U.S.C. § 3553(a)(4)(A)(ii); United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). In any event,
the district court did not apply the career‐offender adjustment. The court acceded to the
wishes of both Foster and the government not to apply the adjustment because Foster’s
qualifying drug convictions – both based on the same series of events but prosecuted in
different jurisdictions – were not the type intended to trigger the career‐offender penalties
under the guidelines.
Counsel also considers whether Foster could argue that the district court overlooked
arguments he had pressed in his sentencing memorandum and during his sentencing
hearing. Counsel points out that the court did not explicitly address Foster’s argument for
being sentenced at the 120‐month statutory minimum – an argument based on Kimbrough v.
United States, 552 U.S. 85 (2007), concerning the district court’s discretion to sentence below
the guidelines range if it disagrees with the sentencing disparity between crack and powder
cocaine. But a sentencing court is not required to address every argument put before it; it
need only consider the factors listed in § 3553(a) and address substantial arguments made
by the defendant. See United States v. Acosta, 474 F.3d 999, 1003 (7th Cir. 2007); United States
v. Cunningham, 429 F.3d 673, 678‐79 (7th Cir. 2005). Foster’s Kimbrough challenge would be
frivolous. His sentence was less than half of that under the guidelines, and we have never
declared a below‐range sentence to be unreasonable. See United States v. Wallace, 531 F.3d
504, 507 (7th Cir. 2008). As for Foster’s arguments at sentencing regarding his rehabilitation
efforts and his health concerns, the record reflects that the court did consider these as
mitigating factors but determined they were outweighed by other concerns warranting a
sentence above 120 months.
Counsel next considers whether Foster could raise an argument of sentence
manipulation because the government waited to arrest Foster until after he made a second
sale of crack to a confidential informant. Counsel correctly notes, however, that this circuit
does not recognize the sentencing manipulation doctrine. United States v. Turner, 569 F.3d
637, 641 (7th Cir. 2009); United States v. White, 519 F.3d 342, 346 (7th Cir. 2008).

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No. 08‐4121 Page 3
Finally, counsel asks whether Foster could make a claim of ineffective assistance of
counsel. Counsel correctly notes, however, that Foster should save any such claim for
collateral review where a more complete record can be made. See Massaro v. United States,
538 U.S. 500, 504‐05 (2003); United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
We therefore GRANT the motion to withdraw and DISMISS Foster’s appeal.

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