United States of America v. Calvin Lesure

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2013
Decided June 7, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2748
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CALVIN LESURE,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 10 CR 818‐1
Amy J. St. Eve,
Judge.
O R D E R
Calvin Lesure pleaded guilty to possession with intent to distribute crack cocaine, 21
U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c), and possession of a firearm by a felon, id. § 922(g)(1). The district court
sentenced him to a total of 132 months’ imprisonment. Lesure filed a notice of appeal, but
his newly appointed attorney contends that any argument on appeal would be frivolous
and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We invited Lesure to
comment on counsel’s motion, but he has not done so. See CIR. 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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12‐2748 2
Counsel advises that Lesure does not seek to withdraw his guilty pleas, so he
correctly refrains from discussing the voluntariness of the pleas or the adequacy of the plea
colloquy. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
Counsel considers whether Lesure could challenge the district court’s calculation of
his guidelines range. Lesure had prior convictions for aggravated robbery, a crime of
violence, see U.S.S.G. § 4B1.2(a)(1) & cmt. n.1, and manufacture or delivery of crack cocaine,
a controlled substance offense, see id. § 4B1.2(b). The district court correctly concluded that
these two convictions make Lesure, because of his current drug conviction, a career
offender. See id. § 4B1.1(a). And because Lesure also faced sentencing for violating 18 U.S.C.
§ 924(c), the court properly referred to the table in U.S.S.G. § 4B1.1(c)(3) to calculate a
guidelines imprisonment range of 262 to 327 months.
We also agree with counsel that any challenge relating to the district court’s
consideration of Lesure’s physical impairments would be frivolous. At sentencing Lesure’s
attorney argued that, because of Lesure’s paraplegia, the court should impose only the five‐
year statutory minimum on the § 924(c) count plus one additional day for his other crimes.
Counsel contended that Lesure faces a significantly reduced life expectancy as a paraplegic
and raised questions about the adequacy of the medical care he would receive in federal
prison. The court responded that Lesure’s “medical condition is a significant factor here
and warrants a deviation from the Guideline range” but disagreed with Lesure’s assertion
that he would not receive adequate medical care in prison. The court then imposed a
sentence approximately 50 percent below the bottom of the guidelines range. Because the
court considered Lesure’s arguments relating to his paraplegia, and in fact imposed a
significantly below‐guidelines sentence in response, any appellate argument along these
lines would be frivolous. See United States v. Sandoval, 668 F.3d 865, 872–73 (7th Cir. 2011).
Counsel also examines whether Lesure could argue that the district court
lengthened his prison sentence to foster his rehabilitation, thus violating 18 U.S.C. § 3582(a)
as interpreted in Tapia v. United States, 131 S. Ct. 2382, 2385 (2011). One of the prosecutor’s
arguments for a 150‐month sentence was that “a lengthy sentence” would give Lesure “an
opportunity to pursue educational and vocational training . . . and also provide ample time
for drug treatment.” The district court, before announcing the sentence, identified several
factors influencing its decision, including the seriousness of Lesure’s crimes, his lengthy
criminal history, and his debilitating medical condition. The sentence would adequately
punish Lesure, the court said, and also protect the public and promote respect for the law.
In addition, the court offered Lesure this assessment of his sentence: “I agree with [the
prosecutor]. It will give you time while you are incarcerated to take advantage of
educational and vocational opportunities.” We, like counsel, conclude that this isolated

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No. 12‐2748 3
comment made after discussing sentencing factors appropriate under 18 U.S.C. § 3553(a),
was not an instance where the district court was referencing Lesure’s opportunity for
rehabilitation as a justification for a longer sentence. See United States v. Lucas, 670 F.3d 784,
794–95 (7th Cir. 2012); United States v. Receskey, 699 F.3d 807, 812 (5th Cir. 2012); United
States v. Gilliard, 671 F.3d 255, 257–60 (2d Cir. 2012). As the Supreme Court said in Tapia, a
district court does not err “by discussing the opportunities for rehabilitation within prison”
and “properly may address a person who is about to begin a prison term about these
important matters.” 131 S. Ct. at 2392. Because the district court did no more than what
Tapia permits, we agree with counsel that an appeal based on Tapia and § 3582(a) would be
frivolous.
Finally, counsel considers whether he could challenge the reasonableness of Lesure’s
sentence of 132 months’ imprisonment—about half of the bottom of the guidelines
range—but correctly concludes that any such argument would be frivolous. A sentence
below the guidelines range is presumed reasonable, United States v. Jones, 696 F.3d 695, 699
(7th Cir. 2012), and counsel has not identified any reason to set aside that presumption. The
district court considered Lesure’s arguments in mitigation and his medical condition, but
also took account of Lesure’s extensive criminal history, the seriousness of his drug and
firearms offenses, and the need for deterrence.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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