NONPRECEDENTIAL DISPOSITION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 16, 2008
Decided May 1, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐3237
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 04:06CR40029‐009‐JPG
TRAVEON LOVING, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Traveon Loving pleaded guilty without the benefit of a plea agreement to one count
of conspiracy to distribute 50 grams or more of crack. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846. The district court calculated a guidelines range of 87 to 108 months’ imprisonment, but
sentenced him to 120 months, the statutory minimum. See § 841(b)(1)(A). Loving filed a
notice of appeal, but counsel now seek to withdraw under Anders v. California, 386 U.S. 738
(1967), because he cannot discern a nonfrivolous basis for appeal. Loving has not accepted
our invitation to comment on counsel’s motion. See CIR. R. 51(b). Because counsel’s
supporting brief is adequate, we limit our review to the potential issues identified in
counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel begins by telling us that he advised Loving of the risks associated with
withdrawing his guilty plea, and that Loving decided that he does not wish to challenge the
No. 07‐3237 Page 2
plea. So counsel appropriately refrained from discussing whether Loving could argue that
his plea was not voluntary. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).
Counsel next considers whether Loving could challenge his sentence. At sentencing
Loving argued that he was entitled to a sentence below the statutory minimum under the
safety valve. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). But the district court disagreed and
found that Loving was ineligible for the safety valve because he had not been truthful in his
proffer. It is was Loving’s burden to establish by a preponderance of the evidence that he
was eligible for the safety valve, see United States v. Montes, 381 F.3d 631, 634 (7th Cir. 2004),
and we would review for clear error the district court’s determination that he had not met
his burden, see United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004). To meet the criteria
for the safety valve, Loving had to show, among other things, that he “truthfully provided
to the Government all information and evidence [he] has concerning the offense.” U.S.S.G.
§ 5C1.2(a)(5). At the sentencing hearing the government’s attorney said that Loving had
been dishonest at his proffer interview. When faced with this assertion, Loving came
forward with nothing to show that his proffer was complete and truthful, as was necessary
to meet his burden. See United States v. Martinez, 301 F.3d 860, 866 (7th Cir. 2002). Thus we
agree with counsel that it would be frivolous for Loving to argue that the district court’s
decision was clearly erroneous. And, in the absence of the safety valve, the district court
was not free to impose a sentence below the mandatory minimum provided by statute. See
United States. v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007); United States v. Lee, 399 F.3d 864,
866 (7th Cir 2005). Thus it also would be frivolous for Loving to argue that his sentence was
unreasonable.
Finally, we note that the Supreme Court recently determined that a district court
may sentence a defendant below the guidelines range if the court disagrees with the policy,
adopted by Congress and the Sentencing Commission, that offenses involving crack cocaine
should be sentenced more harshly than those involving the same amount of powder
cocaine. See United States v. Kimbrough, 128 S. Ct. 558, 564 (2007). But Kimbrough does not
help Loving because Loving received the statutory minimum sentence, and Kimbrough, as
an application of United States v. Booker, 543 U.S. 220 (2005), does not allow a district court to
impose a sentence below the statutory minimum. See Kimbrough, 128 S. Ct. at 569‐71; United
States v. Johnson, No. 07‐1930, 2008 WL 516518, at *3 (8th Cir. 2008); United States v. Duncan,
479 F.3d 924, 930 (7th Cir. 2007). So it would be frivolous for Loving to argue that he could
receive a lower sentence in light of Kimbrough.
Accordingly, counselʹs motion to withdraw is GRANTED, and the appeal is
DISMISSED.