NONPRECEDENTIAL DISPOSITION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 March 19, 2008
Decided March 19, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 06‐4356
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Central District of
Plaintiff‐Appellee, Illinois.
v. No. 05‐30096
DONDI McINTOSH, Jeanne E. Scott,
Defendant‐Appellant. Judge.
O R D E R
Dondi McIntosh pleaded guilty to conspiracy to distribute at least five kilograms of
cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(a)(ii), and use of a telephone in a drug
offense, see 21 U.S.C. § 843(b). The district court found that McIntosh was a career offender
because of his prior convictions for aggravated assault and second‐degree murder, resulting
in an offense level of 37 and a criminal history category of VI. See United States v. Otero, 495
F.3d 393, 400 (7th Cir. 2007). The court applied a three‐level reduction for acceptance of
responsibility and determined that the applicable guidelines range for McIntosh’s offense
No. 06‐4356 Page 2
was 262 to 327 months’ imprisonment. After considering the factors contained in 18 U.S.C.
§ 3553(a), and a motion from the government for a reduced sentence premised upon
McIntosh’s cooperation, the court imposed a sentence of 235 months.
McIntosh filed a notice of appeal, but his counsel now moves to withdraw because
he cannot discern a non‐frivolous basis for appeal. See Anders v. California, 386 U.S. 738
(1967). We invited McIntosh to respond to counsel’s motion, see CIR. R. 51(b), but he has not
done so. Counsel’s supporting brief is adequate, so we limit our review to the potential
issues it identifies. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first considers whether McIntosh could challenge the voluntariness of his
guilty plea. Counsel is correct, however, that he cannot consider such a challenge because,
after discussing the appeal with McIntosh, McIntosh stated that he did not wish to pursue
the argument. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2003). Accordingly,
we examine it no further.
Counsel next considers whether McIntosh could argue that the district court erred
when it failed to specify the number of drug tests to which he must submit during his
supervised release. Counsel is correct that this argument would be frivolous. McIntosh did
not object to the court’s mistake at sentencing, and we have already held that the failure to
set the number of drug tests is not a plain error that we may review on appeal. See United
States v. Tejeda, 476 F.3d 471, 473‐76 (7th Cir. 2007).
Counsel also considers whether McIntosh could argue that the district court should
have used a lower sentencing range because, as he claimed at sentencing, he played only a
minor role in his conspiracy offense. The district court found otherwise. But even if this
finding were clearly erroneous, an argument for resentencing on this basis would be
frivolous. Because McIntosh was sentenced as a career offender, guideline reductions for
minimal or minor roles do not apply to him. See Otero, 495 F.3d at 401 n.4; United States v.
Ward, 144 F.3d 1024, 1036 (7th Cir. 1998).
Counsel also examines McIntosh’s argument that the career‐offender enhancement to
his sentencing guidelines range was based on facts (his prior convictions) that were not
proven beyond a reasonable doubt or admitted, thereby violating the Constitution. In the
district court, McIntosh wished to preserve this argument by contending that Almendarez‐
Torrez v. United States, 523 U.S. 224 (1998), which forecloses this type of challenge, was
wrongly decided. Counsel is correct that to reiterate this argument on appeal would be
frivolous because we have repeatedly held that Almendarez‐Torres remains the governing
law unless and until the Supreme Court overrules it. See United States v. Hendrix, 509 F.3d
362, 375 (7th Cir. 2007).
No. 06‐4356 Page 3
Lastly, counsel considers whether McIntosh could argue that his sentence was
unreasonable. At trial, McIntosh argued that his career‐offender status overstated the
seriousness of his offense and criminal history, as well as his likelihood of committing
further crimes. He pointed to his GED and 38 units of college credit, his status as a good
employee and successful assistant manager at two nursing homes, his lack of drug use, and
the evidence that he is a devoted husband and father. He asserted that no more than ten
years would necessary to accomplish the goals of sentencing.
Nonetheless, counsel is correct that disputing the reasonableness of McIntosh’s
sentence would be frivolous. The sentence was below the presumptively‐reasonable
guidelines range, see Otero, 495 F.3d at 401‐02, and as such it is difficult to conceive of how
such a sentence could be unreasonable, see United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.
2008). Here, the district court correctly calculated his guidelines range and then considered
it in light of the § 3553(a) factors. Specifically, the court noted that McIntosh’s care for his
family, while simultaneously selling drugs illegally, showed him to be living a double life.
It expressed concern that McIntosh’s likelihood of recidivism was high, considering that he
committed his crimes despite all the good that he claimed was in his life. The court
emphasized his serious criminal record as well as the large amount of drugs that he
distributed. Thus, the court discharged its duty to balance any mitigating factors against
retributive and deterrent ends. See United States v. McIlrath, 512 F.3d 421, 423 (7th Cir. 2008);
United States v. Neal, 512 F.3d 427, 438‐39 (7th Cir. 2008); United States v. Mendoza, 510 F.3d
749, 754‐55 (7th Cir. 2008).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.