United States of America v. KENNETH R. GREEN and NEKEYA L. PATTON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 8, 2008
Decided June 4, 2008
Before
JOHN L. COFFEY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 07‐2875 & 07‐3017
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH R. GREEN and
NEKEYA L. PATTON,
Defendants‐Appellants.
Appeals from the United States
District Court for the
Western District of Wisconsin.
No. 07 CR 24
Barbara B. Crabb,
Chief Judge.
O R D E R
Kenneth Green and Nekeya Patton, partners in love and drug dealing, were arrested
moments before a controlled buy of crack cocaine. Both pleaded guilty to possessing crack
with intent to distribute, and both were sentenced under our pre‐Kimbrough precedent,
which prohibited a district court from giving effect to a policy disagreement with the
different treatment under the guidelines for like amounts of powder cocaine and crack. See,
e.g. United States v. Miller, 450 F.3d 270, 275‐76 (7th Cir. 2006), abrogated by Kimbrough v.
United States, 128 S. Ct. 558, 574‐75 (2007). Patton filed a notice of appeal, but her appointed
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 07‐2875 & 07‐3017 Page 2
lawyer moves to withdraw under Anders v. California, 386 U.S. 738 (1967). We deny that
motion because counsel has failed to discuss the nonfrivolous argument that Patton can
raise after Kimbrough. Green also filed an appeal, and his lawyer has also omitted reference
to Kimbrough. But counsel did vaguely reference the 100:1 powder cocaine‐crack cocaine
ratio in his brief, and when we pushed him at oral argument, he finally raised the argument.
We therefore vacate Green’s sentence and remand for resentencing.
I. Background
In February 2007 authorities in Madison, Wisconsin, learned from an informant that
Green was selling crack and firearms. In cooperation with law enforcement, the informant
arranged to meet Green and buy one‐quarter ounce of crack for $175. When Green arrived
by car at the appointed meeting place, he was accompanied by Patton, his girlfriend. Police
officers surrounded Green’s car with their cruisers and ordered him to step out, but he
refused. When an officer attempted to remove Green from his car, Green put the car in
reverse and accelerated. To avoid being pinned between Green’s car and a police cruiser,
the officer jumped into the car with Green and Patton. Green collided with a cruiser and a
signpost and plowed into a snowbank. The officer who tried to pull Green out of the car
was injured in this brief chase, and another officer narrowly avoided injury. After crashing
his car, Green continued to struggle and was placed in custody only after officers subdued
him using a Taser and chemical spray. Patton was arrested without incident.
A search of Green and the car turned up $2232 and a small amount of crack. Patton
consented to a search of the couple’s apartment, where police found 90 grams of crack, four
loaded handguns, approximately $5000, digital scales, and miscellaneous drug
paraphernalia. Patton spoke to investigators and told them that Green had been dealing
crack for about a year. She admitted that she often drove him to sales, and that she had sold
crack herself on occasion. In a later interview, Patton gave investigators information on
Green’s source for drugs and guns. Green also agreed to be interviewed but admitted only
that for several months he had been receiving about half an ounce of crack every week from
a source in Chicago.
A. Kenneth Green’s Sentencing
Green pleaded guilty to possessing crack with intent to distribute, 21 U.S.C.
§ 841(a)(1), and possessing a firearm in furtherance of that drug crime, 18 U.S.C. § 924(c).
The district court estimated that Green’s drug crime involved between 150 and 500 grams of
crack, which corresponded to a base offense level of 34 under the 2006 version of the
guidelines. U.S.S.G. § 2D1.1(c)(3) (2006). The court added two levels because Green had
created a risk of death or serious injury when he tried to avoid capture, id. § 3C1.2, and

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Nos. 07‐2875 & 07‐3017 Page 3
subtracted three levels for acceptance of responsibility, id. § 3E1.1(a). The resulting total
offense level of 33, combined with Green’s criminal history category of III, yielded a
guidelines imprisonment range of 168 to 210 months. The court noted that under the
version of § 2D1.1 that would take effect about three months later and reduce the base
offense level for crack offenses, the range would be 135 to 168 months. For the gun count,
the court calculated the guidelines sentence to be the minimum term required by statute,
five years to be served consecutively to the drug count. 18 U.S.C. § 924(c)(1)(A)(i); U.S.S.G.
§ 2K2.4(b).
Green did not object to the guidelines calculations. Instead, he argued that he
deserved a lower sentence based on the crack‐powder ratio and his attempts to better
himself through education and drug treatment while incarcerated. The government argued
for a higher sentence based on Green’s violent attempt to avoid arrest. The government also
pointed out the informant’s statement that Green was helping drug dealers in Chicago
establish connections in Madison.
The court imposed a sentence of 168 months on the drug count and five years on the
gun count. The court explained that its choice of sentence was based on the serious nature
of the crimes, Green’s extensive criminal history, the need to hold him accountable for his
crimes, the need to deter him from further criminal activity, and the goal of avoiding
sentencing disparities with similarly situated defendants.
B. Nekeya Patton’s Sentencing
Patton was sentenced 11 days after Green. The district court started with the same
base offense level, 34, but “reduced” it to 32 in anticipation of the lower level that would
apply to the same quantity of crack after the amendment to U.S.S.G. § 2D1.1 took effect
about three months later. (Patton did not seek and the district court did not consider an
even lower sentence based on the crack‐powder ratio.) The court added two levels based on
the firearms found in the apartment, U.S.S.G. § 2D1.1(b)(1), and subtracted three levels for
acceptance of responsibility, id. § 3E1.1(a). This yielded a total offense level of 31, which
combined with Pattonʹs lack of criminal convictions led to a range of 108 to 135 months.
The court agreed with the government that a below‐range sentence was warranted based on
Pattonʹs substantial assistance, see U.S.S.G. § 5K1.1, and concluded that Patton’s cooperation
deserved the equivalent of a three‐level reduction in offense level, which would yield an
imprisonment range of 78 to 97 months. The court then imposed a sentence in the middle of
that range, 84 months.

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Nos. 07‐2875 & 07‐3017 Page 4
II. Analysis
A. Kenneth Green
Green argues that his prison sentence for the drug count is substantively
unreasonable. But we need not address that argument because Green is entitled to a
remand for resentencing in light of Kimbrough. Green made the 100:1 ratio argument to the
district court and the court took into account the lower guidelines range that would apply
after the then‐proposed amendment to § 2D1.1 took effect, but it is impossible to tell
whether the court would have in its discretion imposed a different sentence after Kimbrough.
Therefore, we must vacate Green’s sentence and remand for resentencing. See United States
v. Bush, 523 F.3d 727, 728 (7th Cir. 2008); United States v. Padilla, No. 06‐4370, 2008 WL
833994, at *7 (7th Cir. Mar. 31, 2008).
We note the government’s argument that Green waived this claim by not raising it.
See United States v. Thomas, No. 05‐4222, 2008 WL 755297, at *6 (7th Cir. Mar. 24, 2008). It is
unfortunate that Green’s counsel did not mention Kimbrough when he filed the appeal in
November 2007, five months after the Supreme Court granted certiorari and one month
after it heard arguments in the case. Inexplicably, counsel did not discuss the case after the
government noted it in its brief filed in February 2008, almost two months after the
Supreme Court issued its opinion in Kimbrough. Nevertheless, at oral argument Green’s
counsel pointed us to a reference to the 100:1 ratio that he had included in his brief and at
that point articulated an argument that his client was entitled to a remand for resentencing
in light of Kimbrough. That is enough, but just barely, to raise the issue. Cf. Haxhiu v.
Mukasey, 519 F.3d 685, 691‐92 (7th Cir. 2008) (argument not waived when court can
“identify an articulable basis for error” in the brief).
B. Nekeya Patton
Patton has not responded to her lawyer’s Anders submission. See CIR. R. 51(b). Our
review is limited to the two potential issues identified in counselʹs supporting brief. See
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002). And we skip right to counsel’s
analysis of the second issue, whether Patton could make any nonfrivolous challenge to her
sentence, because that analysis is not correct. Patton’s lawyer argues that a challenge based
on substantive reasonableness would be frivolous, but she fails to address any argument
regarding the crack‐powder ratio. Even though the district court gave Patton the benefit of
the amended § 2D1.1 three months before it took effect, the court could not have known of
the greater discretion to sentence below the guidelines that follows from Kimbrough. In light
of that case and our cases applying it, see Bush, 523 F.3d 727; Padilla, 2008 WL 833994; United

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Nos. 07‐2875 & 07‐3017 Page 5
States v. Taylor, No. 06‐4123, 2008 WL 782739 (7th Cir. Mar. 26, 2008), we cannot agree with
counsel that an appellate argument challenging Patton’s sentence would be frivolous.
Accordingly, we DENY counsel’s motion to withdraw and direct counsel to file a
brief on the merits addressing this issue and any others she deems appropriate. We do,
however, invite the parties to file a joint motion for remand, should they deem that
appropriate.
Briefing will proceed as follows:
1. The brief and required short appendix of the appellant are due by July 3, 2008.
2. The brief of the appellee is due by August 4, 2008.
3. The reply brief of the appellant, if any, is due by August 8, 2008.
Note: Circuit Rule 31(e) (amended Dec. 1, 2001) requires that counsel tender a digital copy of a brief, from cover to conclusion, at
the time the paper copies are tendered for filing. The file must be a text based PDF (portable document format), which
contains the entire brief from cover to conclusion. Graphic based scanned PDF images do not comply with this rule and
will not be accepted by the clerk.
Rule 26(c), Fed. R. App. P., which allows three additional days after service by mail, does not apply when the due dates
for briefs are specifically set by order of this court. All briefs are due by the dates ordered.
Important Scheduling Notice !
Notices of hearing for particular appeals are mailed shortly before the date of oral argument. Criminal appeals are
scheduled shortly after the filing of the appellantʹs main brief; civil appeals after the filing of the appelleeʹs brief. If you
foresee that you will be unavailable during a period in which your particular appeal might be scheduled, please write the
clerk advising him of the time period and the reason for such unavailability. Session data is located at
http://www.ca7.uscourts.gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date, it is very difficult
to have the setting changed. See Circuit Rule 34(e).

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