United States of America v. Duwone Ellis

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2012
Decided February 1, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐1008
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DUWONE ELLIS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 09–CR–61
Rudolph T. Randa,
Judge.
O R D E R
Duwone Ellis pleaded guilty to one count of possessing and attempting to possess
with intent to distribute crack cocaine, 21 U.S.C. §§ 841(a)(1), 846, after law enforcement
overheard him completing a sale in a telephone conversation recorded by wiretap. The
district court sentenced Ellis to 50 months’ imprisonment, within the guidelines range of 46
to 57 months. (Ellis was not subject to a mandatory minimum sentence because the court
found that he qualified for the “safety valve” exception. See 18 U.S.C. § 3553(f); U.S.S.G. §
5C1.2(a); United States v. Corson, 579 F.3d 804, 813 (7th Cir. 2009).) Ellis filed a notice of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 11‐1008 Page 2
appeal, but his appointed counsel has moved to withdraw because he cannot identify a
nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738 (1967). Ellis did not
respond to counsel’s motion after we offered him a chance to do so. See CIR. R. 51(b). We
confine our review 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).
Because Ellis has told his counsel that he does not want to challenge his guilty plea,
counsel properly omits evaluating 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 first considers whether Ellis could challenge the district court’s calculation
of his guidelines range on the ground that the court held him responsible for too much
crack. In the plea agreement the parties agreed that, for the count of conviction, Ellis
possessed between 50 and 150 grams of crack, which yielded a base offense level of 30
under the guidelines in effect at the time of the plea. See U.S.S.G. § 2D1.1(c)(5)(2009). By the
time of Ellis’ sentencing in December 2010, however, the guidelines had been amended
under the Fair Sentencing Act, Pub. L. No. 111‐220, 124 Stat. 2372, resulting in a base offense
level of 28 for possession of 112 to 196 grams of crack and an offense level of 26 for
possession of 28 to 112 grams of crack, see U.S.S.G. supp. to app. C, amend. 748 (Supp. 2010)
(amending U.S.S.G. § 2D1.1(c)) (effective Nov. 1, 2010). Ellis argued that the court should
select the lower range because it more closely aligned with the lower bound of the drug‐
quantity range in his plea agreement. But the court chose the higher range of 112 to 196
grams after considering evidence of relevant conduct in the presentence report, which the
parties agreed the court could do. The report declared that Ellis had purchased up to 168
grams of crack. This information, the court reasoned, justified using the higher range, which
captured the 150‐gram upper limit in the plea agreement.
We agree with counsel that a challenge to the district court’s calculation of Ellis’ base
offense level would be frivolous because Ellis presented no evidence to oppose the contents
of the presentence report substantiating the upper bound of 150 grams. See United States v.
Rollins, 544 F.3d 820, 838 (7th Cir. 2008); United States v. Artley, 489 F.3d 813, 821 (7th Cir.
2007). Additionally, any challenge would be frivolous even without the court’s reliance on
the presentence report because Ellis pleaded guilty to possessing up to 150 grams of crack.
The plea concession itself provides an independent basis for the court’s selected range of
112 to 196 grams.
Counsel also considers whether Ellis could challenge the reasonableness of his
sentence, but rightly concludes that any challenge would be frivolous. Ellis’ within‐range
sentence is presumed reasonable, Rita v. United States, 551 U.S. 338, 341 (2007); United States
v. Aslan, 644 F.3d 526, 531–32 (7th Cir.2011), and counsel has not identified any basis to set

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No. 11‐1008 Page 3
aside that presumption. The court also appropriately applied the factors under 18 U.S.C.
§ 3553(a), discussing in detail Ellis’ juvenile record, his lack of employment history, and his
past association with street gangs.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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