NONPRECEDENTIAL DISPOSITION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. 09‐3842
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 324‐20
LEVELL HICKS,
Defendant‐Appellant. Samuel Der‐Yeghiayan,
Judge.
O R D E R
Levell Hicks was a “shift supervisor” overseeing crack cocaine sales for a notorious
street gang that ran a drug‐dealing operation out of the Square, a housing complex in
Chicago. The conspiracy averaged $15,000 in drug sales per day and operated twenty‐four
hours a day, seven days a week. For about two years, suppliers provided cocaine, heroin,
and marijuana to Square residents, who stored, packaged, and redistributed the drugs to
shift supervisors like Hicks. These supervisors, who usually oversaw up to fifteen drug
runners and dealers, then supplied street dealers with drugs to resell in shifts to customers
in the Square.
No. 09‐3842 Page 2
Hicks pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a)(1), and the
district judge sentenced him to 292 months’ imprisonment, the bottom of his 292‐365 month
guideline range. Hicks appeals, but his appointed counsel has concluded that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Hicks has
not responded to counsel’s motion. See CIR. R. 51(b). We review only the potential issues
identified in counsel’s facially adequate brief. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
There is no indication in the record that Hicks wants his guilty plea set aside, so
counsel properly omits any discussion of the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel first considers whether Hicks could argue that the district court overstated
his relevant conduct when it attributed to him 4.5 kilograms of crack cocaine. He wonders if
he could argue that the district court should have attributed to him only 1.5 kilograms to
account for the four to six months he was absent from the conspiracy while healing from a
gunshot wound (unrelated to dealing drugs). Had Hicks been responsible for only 1.5
kilograms, his sentencing range would have lowered to 253 to 293 months’ imprisonment.
But the district judge found that Hicks was never absent from the conspiracy (during the
time he was allegedly recuperating, Hicks was arrested for aggravated arson for breaking
into an apartment in the Square and setting it afire). Even still, Hicks was responsible for
drug quantities directly attributed to him as well as the amounts involved by coconspirators
that were reasonably foreseeable. See, e.g., United States v. Turner, 604 F.3d 381, 385 (7th Cir.
2010). Hicks did not object to the statement in the presentence report that he knew that
during the first year of the conspiracy, the drug ring was selling one kilogram of crack
cocaine every month, and the next year he knew the conspiracy upped the ante to three
kilograms per month. Because Hicks did not object to these facts, the district court was
entitled to rely on them when it concluded that he was responsible for at least 4.5 kilograms
of crack cocaine. See FED. R. CRIM. P. 32(i)(3)(A); United States v. Isom, No. 10‐1085, 2011 WL
873309, at *4 (7th Cir. Mar. 14, 2011).
Counsel next questions whether Hicks could argue that the district court erred when
it added three levels to his base offense level for his supervisory role in the drug scheme. See
U.S.S.G. § 3B1.1(b). Counsel ponders whether Hicks could argue that because he lacked the
ability to hire or fire his street dealers he was too low on the totem pole to warrant an
adjustment under § 3B1.1(b). But so long as Hicks had both relative responsibility and
control over other coconspirators, the adjustment was appropriate. See, e.g., United States v.
Vallar, No. 07‐3641, 2011 WL 488877, at *4 (7th Cir. Feb. 14, 2011). Here, the district judge
found that Hicks recruited sellers of his drugs, determined whether certain street dealers
would receive drugs (and if so how much), and received a larger share of the profits for his
No. 09‐3842 Page 3
role than the street dealers. We have upheld the application of the § 3B1.1(b) adjustment in
similar circumstances. See United States v. Curb, 626 F.3d 921, 925‐26 (7th Cir. 2010); United
States v. Doe, 613 F.3d 681, 688 (7th Cir. 2010).
Last, counsel considers arguing that Hicks’s prison sentence is unreasonably high.
But Hicks’s sentence is within the guidelines range and thus presumptively reasonable,
see Rita v. United States, 551 U.S. 338, 347 (2007), and Hicks’s lawyer is unable to articulate
any basis to upset that presumption. The district judge also acknowledged his discretion
under Kimbrough v. United States, 552 U.S. 85 (2007), to disagree with the guidelines’ crack‐
to‐powder ratio underlying Hicks’s base offense level. Applying the factors in 18 U.S.C.
§ 3553(a), the court noted that Hicks matured while in prison and cooperated in the
prosecution of the person who shot him, but nonetheless arrived at a 292‐month sentence
because Hicks sold drugs in his own community, possessed a gun despite being the victim
of a shooting, and had prior arrests for possession of a controlled substance and aggravated
arson. We thus agree with counsel that any challenge to the reasonableness of his sentence
would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.