NONPRECEDENTIAL DISPOSITION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 April 13, 2011*
Decided April 18, 2011
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐1602
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:07CR40006‐002‐JPG
DAVID T. MORROW, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
A jury found David Morrow guilty of conspiring to distribute crack cocaine,
21 U.S.C. §§ 846, 841(a)(1), and maintaining a residence for the purpose of distributing
crack, id. § 856(a)(1). The district court sentenced him to a total of 504 months’
imprisonment. Morrow appealed, and we affirmed his convictions but remanded the case
for resentencing with instructions to reevaluate the sentencing factors in 18 U.S.C. § 3553(a)
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 10‐1602 Page 2
and to include Morrow’s health problems in that analysis. United States v. Harris, 567 F.3d
846, 854‐56 (7th Cir. 2009).
On remand the district court imposed the same sentence. The court again found that
Morrow was responsible for more than 4.5 kilograms of crack, resulting in a base offense
level of 38, see U.S.S.G. § 2D1.1(c)(1) (2007), and again applied a 2‐level upward adjustment
for possession of a dangerous weapon, see id. § 2D1.1(b)(1). The court also added 4 levels
(instead of the 2 levels assessed previously) after finding that Morrow was a leader of the
extensive conspiracy. See id. § 3B1.1(a). Morrow’s total offense level of 44 and criminal
history category of VI yielded a guidelines range of life imprisonment. The court considered
Morrow’s health complications: his diabetes had worsened, he had lost one leg already and
faced amputation of the other, and he soon would begin dialysis. Still, the court reasoned,
Morrow’s extensive history of drug convictions and the large amount of crack connected
with the conspiracy necessitated “a severe sentence.”
Morrow, now pro se, appeals once more. He does not, however, challenge the
district court’s analysis of the sentencing factors in § 3553(a), and we are satisfied that the
court adequately addressed our concerns on remand. Rather, the vast majority of Morrow’s
submission relates only to matters surrounding his convictions. But these issues could have
been raised in his first appeal, so they fall outside the scope of our review. See United States
v. Swanson, 483 F.3d 509, 514‐15 (7th Cir. 2007); United States v. Husband, 312 F.3d 247, 250
(7th Cir. 2002).
Morrow’s arguments about his resentencing are without merit. He contends that the
district court was not fair and impartial because the court imposed the same sentence. Such
speculation, however, is insufficient to rebut the presumption of impartiality afforded to
judges. See Liteky v. United States, 510 U.S. 540, 551 (1994); Montgomery v. Uchtman, 426 F.3d
905, 910‐11 (7th Cir. 2005); Tezak v. United States, 256 F.3d 702, 718 (7th Cir. 2001). Morrow
also argues that the court erred by applying upward adjustments based on facts proven
only by a preponderance of the evidence. But we have repeatedly rejected that contention.
See United States v. Tanner, 628 F.3d 890, 907 (7th Cir. 2010); United States v. Shannon,
518 F.3d 494, 495‐96 (7th Cir. 2008); United States v. Vitrano, 495 F.3d 387, 390 (7th Cir. 2007).
Finally, Morrow maintains that he is entitled to a reduced sentence under the Fair
Sentencing Act of 2010, Pub. L. No. 111‐220, 124 Stat. 2372. But he cannot benefit from the
Act because it is not retroactive. United States v. Bell, 624 F.3d 803, 814‐15 (7th Cir. 2010),
petition for cert. filed (U.S. Mar. 4, 2011) (No. 10‐9409). And in any event, the amendments to
§ 841(b) resulting from the Act would have no effect on Morrow; he still faced a maximum
sentence of life, since the government had filed an enhancement information to establish his
prior felony drug conviction, 21 U.S.C. § 851, and the jury found that the conspiracy
involved at least 50 grams of crack, id. § 841(b)(1)(B)(iii). Moreover, at the resentencing in
March 2010, the district court was required to apply the sentencing guidelines in effect at
No. 10‐1602 Page 3
the time of Morrow’s first sentencing hearing in February 2008, well before the effective
dates of the Act and the corresponding changes to the guidelines. See 18 U.S.C. § 3742(g)(1);
United States v. Tanner, 544 F.3d 793, 797 (7th Cir. 2008).
Morrow has filed a motion to change the publication status of this order. However,
the concern he expressed in the motion is not affected by this unpublished order.
Accordingly, the judgment is AFFIRMED, and Morrow’s pending motion is
DENIED.