NONPRECEDENTIAL DISPOSITION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 October 17, 2013
Decided October 24, 2013
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐3875
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:12‐cr‐00255‐1
KAVLIN B. HARRIS,
Defendant‐Appellant. Edmond E. Chang,
Judge.
O R D E R
On two occasions in 2010, an informant bought crack cocaine from Kavlin Harris
on a street corner in one of Chicago’s poorest neighborhoods. The FBI arrested Harris
after the second transaction, and he pleaded guilty to two counts of distributing crack in
violation of 21 U.S.C. § 841(a)(1). Those two sales alone totaled 136 grams. Prior state
convictions for second‐degree murder and dealing cocaine made Harris a career
offender, see U.S.S.G. § 4B1.1(a), with a guidelines imprisonment range of 188 to 235
months. The district court sentenced Harris to a total of 120 months and ordered him to
repay the $3,870 he received from the informant. Harris filed a notice of appeal, but his
appointed lawyer asserts that the appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). Harris opposes counsel’s motion. See CIR. R.
51(b).
No. 12‐3875 Page 2
Counsel begins by noting that Harris has said he is satisfied with his guilty pleas
and does not seek to have them set aside. Thus counsel appropriately omits discussion
about the adequacy of the plea colloquy and the voluntariness of the pleas. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667,
671‐72 (7th Cir. 2002).
Counsel has identified several potential sentencing issues, starting with whether
Harris might argue, based on Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), that he
should not have been subject to a statutory minimum prison term of five years on each
count. In Alleyne the Supreme Court extended the rationale of Apprendi v. New Jersey,
530 U.S. 466 (2000), and concluded that ordinarily a jury must find beyond a reasonable
doubt any fact that increases a minimum statutory penalty. For Harris, though, an
appellate claim relying on that decision would be frivolous. Both counts of the
indictment allege a crack amount sufficient to trigger a five‐year minimum term. See 21
U.S.C. § 841(b)(1)(B)(iii). By pleading guilty and admitting the amounts alleged, Harris
waived his right to a jury determination and also established those amounts beyond a
reasonable doubt. See United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002) (“An
admission is even better than a jury’s finding beyond a reasonable doubt; it removes all
contest from the case.”); United States v. Collins, 272 F.3d 984, 987‐88 (7th Cir. 2001)
(noting that defendant waived right to jury determination of drug quantity by
stipulating to amount of crack cocaine involved in case); see also United States v. Yancy,
725 F.3d 596, 601‐02 (6th Cir. 2013) (explaining that Alleyne does not alter rule that, for
statutory enhancements, defendant’s guilty plea and admissions during plea colloquy
relieve government of burden of proving facts to jury beyond a reasonable doubt).
Both the lawyer and Harris next discuss whether the defendant could argue that
it was error to apply the career‐offender guideline. See U.S.S.G. § 4B1.1(a). We agree
with counsel that an appellate claim would be frivolous; Harris’s convictions in Illinois
for second‐degree murder, 720 ILCS 5/9‐2 (1994), and delivery of a controlled substance,
720 ILCS 570/401 (2004), are respectively convictions for a crime of violence and a
controlled substance offense. See U.S.S.G. 4B1.2(a)(1), (b), cmt. n.1.
In a Rule 51(b) response, Harris contends that he is not a career offender because,
he says, his conviction arising from a beating death in 1995 was for “manslaughter,” not
second‐degree murder, and the conviction involving cocaine in 2008 was for possession,
not delivery.1 Harris further contends that the district court erred by allowing the
1
Apart from exceptions not relevant here, Illinois has not recognized “manslaughter” as
a crime since 1987. See P.A. 84-1450 § 9-2 (effective July 1, 1987); Moleterno v. Nelson, 114
F.3d 629, 630-31 (7th Cir. 1997). The state’s criminal code defines “involuntary manslaughter”
as a crime, 720 ILCS 5/9-3 (1994), but that offense is not a crime of violence. United States v.
Woods, 576 F.3d 400, 412-13 (7th Cir. 2009).
No. 12‐3875 Page 3
probation officer to rely upon police reports in establishing the facts underlying his
convictions. See generally Shepard v. United States, 544 U.S. 13 (2005).
The presentence report lists convictions for “Second Degree Murder” and
“Delivery of a Controlled Substance,” and for both of these convictions the probation
officer’s supervisor personally identified the crime by reviewing the file from the state
court. (The supervisor also confirmed that Harris incurred another drug conviction in
2008; that one was for possession of cocaine.) In a sentencing memorandum, Harris’s
lawyer accepted that the two convictions are described accurately in the presentence
report, and counsel also advised the district court that Harris “does not disagree” with
the probation officer’s assessment that he is a career offender. Counsel repeated that
concession in open court during the sentencing hearing. We have held that a district
judge does not commit error by relying on an unchallenged presentence report in
identifying a defendant’s prior convictions, United States v. Aviles‐Solarzano, 623 F.3d
470, 475 (7th Cir. 2010); United States v. Thornton, 463 F.3d 693, 700‐01 (7th Cir. 2006),
and thus Harris’s proposed argument would be frivolous. Moreover, the contention
was waived when his lawyer expressly concurred with the probation officer’s
assessment. See United States v. Adcock, 534 F.3d 635, 641 (7th Cir. 2008); United States v.
Sensmeier, 361 F.3d 982, 986‐87 (7th Cir. 2004). Finally, the probation officer’s resort to
police reports in describing the conduct underlying Harris’s qualifying convictions is
irrelevant; the facts did not matter to the outcome.
Next, counsel and Harris question whether Harris could argue that his prison
sentences are unreasonably long. Counsel asserts that any argument Harris might
make would be frivolous, and we agree. The concurrent terms are significantly below
the guidelines range and thus presumptively reasonable. Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Jones, 696 F.3d 695, 700 (7th Cir. 2012). Nothing about
this case would seem to warrant an exception to that presumption, but Harris asserts
that the career‐offender guideline overstates the seriousness of his prior convictions.
He also insists that the district judge gave too little weight to his family ties and the
positive changes he purportedly has made since his arrest. See 18 U.S.C. § 3553(a). The
judge considered those contentions, however, when deciding to impose an overall
prison sentence more than five years less than the guidelines minimum. The judge’s
decision to weigh mitigating factors differently than a defendant does not make the
resulting sentence unreasonable. See United States v. Annoreno, 713 F.3d 352, 360‐61 (7th
Cir. 2013); United States v. Farris, 532 F.3d 615, 620 (7th Cir. 2008).
Harris proposes four other arguments in response to counsel’s Anders
submission. All would be frivolous. First, Harris would contend that 120 months’
imprisonment creates an unwarranted disparity between his sentence and those of
other members in his drug circle who were prosecuted in unrelated cases for drug
crimes. Yet a district court necessarily considers the goal of avoiding unwarranted
No. 12‐3875 Page 4
disparity when it imposes a sentence consistent with the guidelines. Gall v. United
States, 552 U.S. 38, 54 (2007); United States v. Turner, 604 F.3d 381, 389 (7th Cir. 2010).
Second, Harris would argue that he was deprived of due process because, he
says, he received the presentence report less than two weeks before sentencing instead
of the 35 days allotted by the rules of procedure. See FED. R. CRIM. P. 32(e)(2); N.D. ILL.
LOC. R. 32.1(f). In fact, the district court’s docket shows that the presentence report was
available to the parties 32 days before sentencing. And although, absent waiver, that
still is less than the rules provide, Harris and his lawyer did not complain during the
sentencing hearing and thus on appeal could not make an issue of the late disclosure.
See United States v. Jacques, 345 F.3d 960, 962‐63 (7th Cir. 2003); United States v. Knorr, 942
F.2d 1217, 1221 (7th Cir. 1991).
Third, Harris would contest the district court’s directive that, as a condition of
supervised release, he reimburse the government the amount the informant gave him to
buy crack. That directive was appropriate. See United States v. Anderson, 583 F.3d 504,
509 (7th Cir. 2009) (explaining that sentencing court may not order repayment of costs
of investigation as restitution but may do so as a special condition of supervised
release); United States v. Cook, 406 F.3d 485, 489 (7th Cir. 2005) (explaining that
repayment of investigatory expenses can be a special condition of supervised release).
Contrary to his assertion, Harris is not required by the judgment to repay the money
immediately.
And last, Harris wishes to contest his assignment to a federal prison in North
Carolina rather than a facility closer to Chicago. The district court did recommend that
Harris be assigned to a facility as close to Chicago as possible, but the Bureau of Prisons
controls housing decisions and did not follow that recommendation. The federal courts
do not have the power to direct prison administrators to assign a defendant to a
particular facility. See 18 U.S.C. § 3621(b); Tapia v. United States, 131 S. Ct. 2382, 2390‐91
(2011).
Accordingly, we GRANT counsel’s motion to withdraw, DENY Harris’s motion
for the appointment of new counsel, and DISMISS the appeal.