United States of America v. Lawrence Tolliver

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 21, 2014
Decided February 21, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐1227
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LAWRENCE TOLLIVER,
Defendant‐Appellant.
Appeal from the
United States District Court for the
Northern District of Illinois,
Eastern Division.
No. 11 CR 683‐1
Amy J. St. Eve,
Judge.
O R D E R
Between October 2006 and September 2007, Lawrence Tolliver participated in a
drug ring selling heroin in Chicago and Milwaukee. He was arrested after a series of
controlled buys and confessed to distributing about 1.4 kilograms during that time. He
pleaded guilty to one count of conspiracy to possess and distribute heroin, 21 U.S.C.
§§ 846, 841(a)(1), and the district court, after calculating a guidelines imprisonment
range of 188 to 255 months, sentenced him to 139 months.
Tolliver filed a notice of appeal, but his appointed lawyer asserts that the appeal
is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13‐1227 Page 2
Tolliver has not accepted our invitation to respond to counsel’s motion. See 7th C IR .
R. 51(b). We confine our review to the potential issues discussed in counsel’s facially
adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel begins by noting that Tolliver has no interest in challenging his guilty
plea. Thus counsel appropriately omits discussion about the adequacy of the plea
colloquy and the voluntariness of the plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
In calculating a total offense level of 32, the district court found that Tolliver’s
drug ring had at least five participants and applied a 3‐level upward adjustment based
on Tolliver’s role as a supervisor or manager. See U.S.S.G. § 3B1.1(b). Counsel first
questions whether Tolliver could contest that increase. Section 3B1.1(b) adds three
offense levels if the defendant managed or supervised at least one member of a criminal
activity involving five or more participants. See id. § 3B1.1 cmt. n.2; United States v.
Figueroa, 682 F.3d 694, 697 (7th Cir. 2012); United States v. Hussein, 664 F.3d 155, 163 (7th
Cir. 2011). In his plea agreement, Tolliver stipulated that he was one of at least five
coconspirators, but he did not accept the government’s representation about his role
relative to the other participants.
We agree with counsel that it would be frivolous for Tolliver to argue that he
never managed or supervised at least one of his coconspirators. We review a district
court’s findings about aggravating role for clear error. United States v. Young, 590 F.3d
467, 471 (7th Cir. 2009). A “manager” or “supervisor” does exactly what a commonsense
understanding of those terms implies: He “tells people what to do and determines
whether they’ve done it.” Figueroa, 682 F.3d at 697; see United States v. Weaver, 716 F.3d
439, 443 (7th Cir. 2013); United States v. Grigsby, 692 F.3d 778, 790 (7th Cir. 2012).
Examples include sending a cohort to exchange drugs for money and return with the
cash, United States v. Bennett, 708 F.3d 879, 892 (7th Cir. 2013); telling a drug mule where
to pick up and deliver a load, Figueroa, 682 F.3d at 697; and choosing who will
participate in a criminal enterprise, Young, 590 F.3d at 472; United States v. Cadavid,
192 F.3d 230, 237 (1st Cir. 1999).
The record shows that Tolliver managed or supervised at least two members of
the drug ring: Lashaun Jetters and Orlando Ware. Jetters was a courier; he confessed to
police and admitted in his plea agreement that he was “working for” Tolliver and was
paid $100 for each of seven deliveries that Tolliver had directed him to make. He added
that he made an eighth delivery for free, again at Tolliver’s direction. Tolliver, who

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No. 13‐1227 Page 3
presented no evidence contradicting Jetters, thus supervised or managed him.
See Bennett, 708 F.3d at 892; Figueroa, 682 F.3d at 697; Young, 590 F.3d at 472. Ware
similarly admitted in his plea agreement that Tolliver had paid him to complete tasks
like delivering drugs and mixing and packaging heroin. Again, Tolliver presented no
contradictory evidence, and even if Ware could have been motivated to implicate
Tolliver to mitigate his own role in the conspiracy, it was within the district court’s
discretion to credit his testimony. See United States v. Mendoza, 576 F.3d 711, 717–18 (7th
Cir. 2009). Thus it would be frivolous for Tolliver to argue that the judge clearly erred
by crediting his statements and finding that Tolliver supervised him.
The only other possible appellate claim—also frivolous, in counsel’s
view—concerns the reasonableness of Tolliver’s prison term. Tolliver’s criminal history
placed him in Category V, which combined with his total offense level of 32, yielded an
imprisonment range of 188 to 255 months. The defendant persuaded the district court
that his criminal‐history score was overstated, and the judge agreed that his prior
convictions looked more akin to those of a Category III offender. Tolliver’s sentence of
139 months, though, is a full year below the low end of the range that would have
applied even if he was in Category III (151 to 188 months) and more than four years
below the actual range. The sentence imposed is presumed reasonable, Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Womack, 732 F.3d 745, 747 (7th Cir. 2013),
and nothing about this case warrants an exception to that presumption. The judge
considered Tolliver’s family circumstances, remorse, and commitment to drug
rehabilitation. The judge also considered his failure to pay child support, the impact
that heroin has in Chicago, and the need to protect the public from future crimes
committed by Tolliver. See 18 U.S.C. § 3553(a). Any challenge to the resulting sentence
would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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