NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 16, 2010
Decided June 16, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐2474
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 708‐1
TONY HARRIS,
Defendant‐Appellant. David H. Coar,
Judge.
O R D E R
Tony Harris was charged with six bank robberies and pleaded guilty to three of
them. See 18 U.S.C. § 2113(a). The district court calculated a guidelines imprisonment range
of 188 to 235 months and sentenced Harris to a total of 161 months, but we granted the
parties’ joint motion for remand based on a one‐level overstatement in Harris’s total offense
level. United States v. Harris, No. 08‐1015 (7th Cir. Nov. 19, 2008) (unpublished order). The
district court again sentenced him to 161 months’ imprisonment, which is still below the
recalculated range of 168 to 210 months. Harris filed a notice of appeal, but his appointed
counsel cannot find a nonfrivolous issue to pursue and seeks permission to withdraw. See
Anders v. California, 386 U.S. 738 (1967). Harris did not respond to counsel’s submission. See
No. 09‐2474 Page 2
CIR. R. 51(b). We consider only the potential issues raised in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Initially, counsel notes that Harris wants to contest guidelines adjustments made at
his first sentencing hearing but not raised at resentencing. Counsel concludes, however,
that Harris would be foreclosed from raising these challenges in this appeal. We agree. In
his first appeal, Harris and the government moved for a joint remand for resentencing
based on a single error in the calculation of Harris’s offense level but mentioned no other
possible issue for review. In their motion the parties were explicit that “the mandate should
state that the scope of the remand is limited to resentencing based on the correct advisory
guideline range,” which we were told was 168 to 210 months, exactly as the district court
found on remand. Moreover, Harris did not challenge the application of the guidelines at
resentencing. Harris thus waived any other issue that could have been raised in the first
appeal. See United States v. Sumner, 325 F.3d 884, 891‐92 (7th Cir. 2003); United States v.
Jackson, 186 F.3d 836, 838 (7th Cir. 1999); cf. United States v. Schroeder, 536 F.3d 746, 751‐52
(7th Cir. 2008) (allowing appellate review of issues raised and considered on resentencing
after joint motion for remand even though not raised in first appeal).
Counsel next considers whether Harris could argue that his prison sentence is
unreasonable. But his below‐range sentence is presumed to be reasonable, United States v.
Jackson, 598 F.3d 340, 345 (7th Cir. 2010), so Harris would have to show that the district court
did not properly consider his asserted mitigating factors, United States v. Singleton, 588 F.3d
497, 500‐01 (7th Cir. 2009). This he could not do. First, the district court disagreed that
Harris’s criminal history category overrepresented his prior convictions. At the first
sentencing hearing, the court had listed multiple convictions going back decades that did
not count towards Harris’s criminal history score, and again at the second hearing the court
cited Harris’s criminal history as a justification for the sentence. The court also disagreed
with Harris’s optimistic self‐assessment of his chances for rehabilitation. Harris argued that
his exemplary postsentencing behavior showed great rehabilitative potential, but the court
was more focused on his efforts at resentencing to minimize the seriousness of his crimes.
The court nonetheless did consider in mitigation Harris’s lesser culpability in relation to his
codefendants by giving him a below‐guidelines sentence. And finally, although the court
did not mention Harris’s argument that the poor conditions during his pretrial detention at
the Kankakee County Jail warranted an even lesser sentence, we have held that conditions
like the ones Harris complained of—less contact with family, lack of access to the law
library, and occasionally overflowing toilets—are not relevant to the factors in 18 U.S.C.
§ 3553(a) and thus do not warrant sentencing consideration. See United States v. Turner, 569
F.3d 637, 642 (7th Cir.), cert. denied, 130 S. Ct. 654 (2009); United States v. Campos, 541 F.3d
735, 751 (7th Cir. 2008), cert. denied, 129 S. Ct. 955 (2009); United States v. Ramirez‐Gutierrez,
503 F.3d 643, 645‐46 (7th Cir. 2007). The court, therefore, adequately considered all of
No. 09‐2474 Page 3
Harris’s arguments, foreclosing any possible challenge to the reasonableness of the
sentence.
Accordingly, we GRANT counsel’s motion and DISMISS the appeal.