NONPRECEDENTIAL DISPOSITION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 May 25, 2011
Decided May 25, 2011
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 10‐1275
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 09‐30032‐001
RICHARD PARRISH, Jeanne E. Scott,
Defendant‐Appellant. Judge.
O R D E R
Richard Parrish pleaded guilty to two counts of distributing crack cocaine, see 21
U.S.C. § 841(a)(1), after he sold drugs to a government informant. At sentencing Parrish
conceded that he was responsible for distributing between 500 grams and 1.5 kilograms of
crack cocaine. The district court then determined that he was a career offender, see U.S.S.G.
§ 4B1.1, and sentenced him to 250 months’ imprisonment, one year below the bottom of the
guidelines range. Parrish appeals, but his appointed counsel contends that the case is
frivolous and seeks permission to withdraw under Anders v. California, 386 U.S. 738, 744
(1967). Parrish opposes counsel’s submission. See CIR. R. 51(b). We limit our review to the
potential issues identified in counsel’s facially adequate brief and Parrish’s response.
See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 10‐1275 Page 2
Counsel begins by considering whether Parrish could challenge the adequacy of the
plea colloquy or the voluntariness of his pleas. But Parrish has given no indication that he
wants his guilty pleas set aside, so counsel needn’t have discussed these issues. See United
States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
Counsel and Parrish propose challenging the career‐offender designation by arguing
that Parrish lacks the two prior felony convictions for either a controlled‐substance offense
or a crime of violence that are required to satisfy § 4B1.1(a)(3). The district court concluded
that Parrish was a career offender based on his prior convictions for second‐degree murder,
distributing a controlled substance, and domestic battery. Counsel and Parrish concede that
the controlled‐substance conviction is a qualifying offense, but they consider disputing the
remaining two. They propose arguing that the second‐degree murder conviction cannot
support a career‐offender designation because Parrish was 15 at the time of the offense, and
he served his sentence in a juvenile facility. This argument would be frivolous, however,
because, as counsel acknowledges, Parrish was tried and convicted as an adult, and our
analysis turns on how a juvenile was convicted rather than how he was sentenced. United
States v. Gregory, 591 F.3d 964, 967 (7th Cir. 2010). Counsel and Parrish also consider arguing
that the domestic‐battery offense was nonviolent because the victim offered to testify at
Parrish’s sentencing that she was not injured, but that argument would also be frivolous.
The victim’s proposed testimony would be irrelevant because we consider only the battery
conviction itself and not the underlying facts to decide if an offense is a crime of violence.
See Begay v. United States, 553 U.S. 137, 141 (2008); United States v. Woods, 576 F.3d 400, 403‐
04 (7th Cir. 2009). And in any event Parrish’s drug and second‐degree murder convictions
suffice to qualify him for career‐offender status, so any challenge to the district court’s
reliance on the domestic‐battery conviction would be doubly frivolous.
Counsel next evaluates whether, career‐offender status notwithstanding, Parrish
could challenge the district court’s guidelines calculations. He correctly concludes that a
challenge to Parrish’s criminal history would be frivolous because § 4B1.1(b) mandates a
criminal history category of VI for career offenders. He also considers arguing that the
district court should have accounted for the disparity between crack and powder cocaine
when setting Parrish’s base offense level, but correctly concludes that such an argument
would have made no difference. A career offender’s base offense level is determined by the
statutory maximum sentence for the underlying offense. See U.S.S.G. § 4B1.1(b); United
States v. Liddell, 543 F.3d 877, 882 (7th Cir. 2008). At the time of Parrish’s offense, a
conviction for distributing more than 500 grams of cocaine (whether crack or powder),
when coupled with a prior felony drug conviction, carried a statutory maximum sentence of
life imprisonment, which yields a base offense level of 37. See U.S.C. § 841(b)(1)(A), (B)
(2006); U.S.S.G. § 4B1.1(b). (The Fair Sentencing Act of 2010 changed these threshold
quantities, but the Act is not retroactive, see United States v. Bell, 624 F.3d 803, 814 (7th Cir.
No. 10‐1275 Page 3
2010), so those changes are irrelevant here.) Thus Parrish’s base offense level would have
been 37 irrespective of the type of cocaine involved, so it would be frivolous to challenge his
offense level on this ground.
Finally, counsel examines whether Parrish could argue that his below‐range sentence
is unreasonably high. Parrish asked the district court to consider his personal characteristics
and the disparity between crack and powder cocaine as grounds for imposing a below‐
guidelines sentence. The district court reduced Parrish’s sentence by one year based on
testimony from his family about his generosity and caring nature, but disagreed that the
disparity between crack and powder cocaine warranted a further reduction. Because the
district court considered both of Parrish’s arguments in favor of a reduced sentence and
took into account the relevant factors under 18 U.S.C. § 3553(a), it would be frivolous to try
to overcome the presumption of reasonableness that applies to below‐guidelines sentences.
See United States v. Curb, 626 F.3d 921, 927 (7th Cir. 2010).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.