Nonprecedential Disposition

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 28, 2008
Decided March 4, 2008
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 06‐3191
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 03‐CR‐428‐1
DERRICK GARDNER,
Defendant‐Appellant. Ronald A. Guzmán,
Judge.
O R D E R
For the second time, Derrick Gardner comes before this court seeking to appeal the
sentence he received after a jury found him guilty of possession of a firearm by a felon. See
18 U.S.C. § 924(g)(1). The district court first sentenced him to 235 months’ imprisonment,
the lowest end of the applicable guidelines range. Gardner’s appeal was pending when the
Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), so we issued a limited
remand to determine whether the district court would have imposed a lower sentence had it
known the sentencing guidelines were advisory, United States v. Gardner, No. 04‐1826 (7th
Cir. May 11, 2005). We vacated the judgment and remanded for resentencing after the court
replied that it was inclined to impose a shorter term. United States v. Gardner, 142 Fed.
App’x 926 (7th Cir. Aug. 30, 2005).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06‐3191 Page 2
On remand Gardner’s attorney moved for a continuance because Gardner had told
him for the first time just before resentencing that he wanted to challenge his designation as
an armed career criminal. See 18 U.S.C. § 924(e)(1). Gardner proposed to argue that the
drug convictions comprising two of his three qualifying convictions did not carry a
maximum term of imprisonment of 10 years or more, as required. See id. § 924(e)(2)(A)(ii).
The district court reasoned, however, that this argument was beyond the scope of the
remand since Gardner could have made it in his first appeal. The court thus declined to
continue the hearing and sentenced Gardner to 180 months. In selecting that term the court
noted that Gardner would be in his fifties when released from prison and that at that age
would have an “extremely low risk” of recidivism, thus making any sentence beyond 180
months unnecessary to punish Gardner or protect the public.
Gardner wants to challenge his revised sentence, but newly appointed appellate
counsel has moved to withdraw because he cannot discern a nonfrivolous issue for appeal.
See Anders v. California, 386 U.S. 738 (1967). Gardner opposes this request but has not added
to the potential issues identified in counsel’s supporting brief. See Cir. R. 51(b). We limit
our review to those potential issues. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.
2002).
Counsel first considers whether Gardner could argue that the district court erred by
not allowing him to challenge the prior drug convictions that were essential to qualify him
as an armed career criminal. Counsel correctly concludes that this argument would be
frivolous because Gardner could have but did not challenge his classification as an armed
career criminal in the first appeal and thus placed the issue beyond the scope of the remand.
See United States v. Swanson, 483 F.3d 509, 514‐15 (7th Cir. 2007); United States v. Husband, 312
F.3d 247, 250‐51 (7th Cir. 2002); United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001)
(explaining that “parties cannot use the accident of remand as an opportunity to reopen
waived issues”). Even so, Gardner does qualify as an armed career criminal because in 1990
he was twice convicted of manufacturing and delivering a controlled substance, a crime that
carried a maximum sentence of 10 years or more. See Ill. Rev. Stat., ch. 56 1/2, ¶ 1401 (1991).
Counsel also considers whether Gardner could argue that his prison sentence is
unreasonable. Gardner received the statutory minimum sentence, which even after Booker
the district court had no discretion to ignore. See United States v. Duncan, 479 F.3d 924, 930
(7th Cir. 2007); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). Thus this potential
argument, too, is frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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