UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2005
Decided December 14, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3217
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 05-CR-26-C-01
RAYMOND W. HANSON, JR.,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
When Raymond Hanson, Jr., no longer could afford to purchase
methamphetamine to feed his addiction, he learned how to manufacture the drug
himself. For the next two years he “cooked” for himself and others who provided
him the necessary ingredients. In February 2005, a grand jury charged Hanson
with conspiracy to manufacture, distribute, and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Hanson pleaded
guilty pursuant to an agreement that called for his continued cooperation with the
government’s investigation, and the district court, relying on the presentence report
over Hanson’s objection, calculated a guideline imprisonment range of 168 to 210
months. The court initially sentenced Hanson to 180 months’ imprisonment and
No. 05-3217 Page 2
three years’ supervised release but, after Hanson timely filed a notice of appeal,
purported to reduce the prison term to 135 months on the government’s
postjudgment motion under Fed. R. Crim. P. 35. Hanson’s appointed counsel now
moves to withdraw because she cannot discern a nonfrivolous basis for the appeal.
See Anders v. California, 386 U.S. 738 (1967). Counsel’s submission is facially
adequate, and Hanson has not responded to our invitation under Circuit Rule 51(b)
to comment on counsel’s motion. We therefore limit our review to potential issues
identified in counsel’s submission. United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997) (per curiam).
Counsel first informs us that Hanson does not wish to take back his guilty
plea, so she correctly avoids any discussion of the plea colloquy or the voluntariness
of Hanson’s plea. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel then considers whether Hanson might challenge the district court’s
application of a two-level upward adjustment under U.S.S.G. § 3B1.1(c) for acting
as “an organizer, leader, manager, or supervisor.” A defendant’s role in the offense
is a question of fact reviewed only for clear error. United States v. Frazier, 213 F.3d
409, 417 (7th Cir. 2000). Section 3B1.1 punishes more severely those defendants
who bear a greater responsibility for an offense relative to other participants,
United States v. Gracia, 272 F.3d 866, 876–77 (7th Cir. 2001), and in this case the
district court concluded that Hanson was more culpable than his coconspirators
even though he did not fit the stereotypical view of the leader of a criminal
operation. As the court noted, Hanson was the “cook” and controlled the
manufacturing process. He directed others to purchase the necessary raw materials
and in return traded them finished product at exchange rates he set. We thus agree
with counsel that it would be frivolous for Hanson to argue that the district court
committed clear error in imposing the adjustment.
Counsel also concludes that it would be frivolous to argue that Hanson’s
prison sentence is unreasonable, though she misunderstands which term is before
this court. Counsel analyzes the district court’s purported 135-month sentence and
concludes that term is reasonable because it falls within the properly calculated
advisory guideline range. But the district court’s attempt to reduce Hanson’s
sentence was entered after Hanson filed his notice of appeal and therefore has no
effect. See United States v. Turchen, 187 F.3d 735, 743 (7th Cir. 1999) (explaining
that district court lacks jurisdiction to rule on Rule 35(b) motion after notice of
appeal has been filed). The only term of imprisonment that would be before this
court for review is the district court’s original sentence of 180 months; that term is
presumed reasonable because it falls within the properly calculated advisory
guideline range. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And
since counsel is unable to articulate any basis for rebutting that presumption, an
argument that the term is not reasonable would be frivolous.
No. 05-3217 Page 3
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this
appeal, but REMAND the case to the district court so that it may vacate its ruling
on the government’s Rule 35 motion and the amended judgment issued on August
22, 2005. The district court will be free to take up the government’s motion again
on remand.