United States of America v. Tyray Roberson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2009
Decided July 22, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-2966
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRAY ROBERSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 04-CR-162
Barbara B. Crabb,
Chief Judge.
O R D E R
Tyray Roberson pleaded guilty to distributing cocaine, 21 U.S.C. § 841(a), and was
initially sentenced to 194 months’ imprisonment. In a previous appeal, Roberson argued
that his sentence was unreasonable in light of the disparity between sentences for selling
crack and powder cocaine. We upheld the sentence, but the Supreme Court granted
Roberson’s petition for certiorari, vacated our judgment, and remanded for further
consideration in light of Kimbrough v. United States, 128 S. Ct. 558 (2007). See Roberson v.
United States, 128 S. Ct. 1061 (2008). We then vacated the sentence and ordered
resentencing. See United States v. Roberson, No. 05-1958 (7th Cir. Apr. 8, 2008). On remand
the district court imposed a term of 156 months’ imprisonment. Roberson filed a notice of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-2966 Page 2
appeal, but his appointed lawyers now seek to withdraw because they cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Roberson has not
responded to our invitation to comment on counsel’s motion, see CIR. R. 51(b), and
accordingly we confine our review to the issues identified in counsel’s brief. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first consider whether Roberson could argue that the district court erred in
limiting the scope of the resentencing to issues related to Kimbrough. At resentencing
Roberson argued that his base offense level overstates the amount of crack he was
responsible for, and therefore the court should reconsider its drug-quantity finding before
deciding on his new sentence. But as counsel recognize, the district court correctly refused
to reassess the drug quantity because that step would have exceeded the scope of our
Kimbrough remand. That is because Roberson did not challenge the amount of crack in his
original appeal and therefore waived the argument. 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). The
potential argument is frivolous.
Counsel consider one other potential argument: whether Roberson could challenge
the reasonableness of his new sentence. At resentencing the district court applied the 2007
guidelines in effect at the time; the 2007 version included an amendment lowering the base
offense level for many drug crimes involving crack. The court began with a base offense
level of 36, see U.S.S.G. § 2D1.1(c)(2), and subtracted three levels for acceptance of
responsibility, see id. at § 3E1.1. The total offense level of 33, combined with a criminal
history category of II, yielded a guidelines imprisonment range of 151 to 188 months. The
court then turned to the factors set forth under 18 U.S.C. § 3553(a). The court considered
the crack-cocaine sentencing disparity as well as Roberson’s efforts to rehabilitate himself
in prison, including maintaining a job and enrolling in college courses, and arrived at a
sentence of 156 months’ imprisonment. The court explained that a below-guidelines
sentence was not warranted here because of the large amount of crack involved and the
need for deterrence. We presume that a sentence within a properly calculated guidelines
range is reasonable so long as the district court meaningfully considered the § 3553(a)
factors. See Rita v. United States, 127 S. Ct. 2456, 2462-64 (2007); United States v. Williams, 553
F.3d 1073, 1083 (7th Cir. 2009). And that is the situation here. We agree that a
reasonableness challenge to Roberson’s new sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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