NONPRECEDENTIAL DISPOSITION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 July 16, 20081
Decided July 23, 2008
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐1339
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 01 CR 148
JAQUAN T. CLAYTON, J.P. Stadtmueller, Judge.
Defendant‐Appellant.
O R D E R
Almost seven years ago, Jaquan T. Clayton was indicted for violations of the
narcotics laws‐‐21 U.S.C. §§ 841 and 846. He was convicted and sentenced to a term of
330 months in prison. He appealed, and we affirmed his conviction and sentence.
1
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
No. 08-1339 2
However, within the same month, the United States Supreme Court issued its decision
in Blakely v. Washington, 124 S. Ct. 2531 (2004). Based on that decision, Clayton
petitioned for a writ of certiorari. Then the Court decided United States v. Booker, 125
S. Ct. 738 (2005), a decision throwing federal sentencing into disarray. Based on
Booker, the Court granted Clayton’s petition and vacated and remanded his case. In
turn, we issued an order for a limited remand in line with the manner in which we were
handling other cases affected by Booker. See United States v. Paladino, 401 F.3d 471
(7th Cir. 2005). The district judge responded to our order by informing us that a full
remand for resentencing was appropriate, and on October 11, 2006, we remanded the
case.
A resentencing hearing was held in November 2007. At the hearing, the judge
substantially reduced Clayton’s sentence from 330 months to 225 months. Despite what
should have seemed like a clear victory, Clayton nevertheless filed a timely notice of
appeal. His appointed counsel now moves to withdraw under Anders v. California, 386
U.S. 738 (1967), because he cannot discern any nonfrivolous ground for appeal. We
notified Clayton that he could comment on counsel’s submission, see Cir. R. 51(b), but
he has not responded.
As counsel states in his supporting brief, because of the nature of the remand,
the only possible appealable issue is whether the district court erred in resentencing
Clayton to 225 months in prison. The sentence can only be set aside if it is
unreasonable. Because Clayton’s sentence is within the applicable advisory guideline
range, it is presumptively reasonable.
The record as a whole makes clear that the district judge realized that he could
depart from the sentencing guidelines. However, there are, as counsel points out,
statements which taken in isolation could suggest otherwise. The judge said:
And far too often individuals, whether they be defendants or
family members or other members of the community who
support a given family member, fail to appreciate the fact
that we as judges have been significantly bridled when it
comes to the matter of sentencing, because these are the very
reasons that Congress has chosen to adopt the guideline
No. 08-1339 3
approach to sentencing to eliminate these disparities that
heretofore have existed.
And if the Court is going to impose sentences that are
outside of the mainstream there better be very good and
sufficient reasons to do so, because in the current
environment, and we’ve seen this when it comes to certain
offenses, that instead of giving a guideline approach there is
a statutory mandatory penalty. In other words, the judge
has virtually no discretion whatsoever. The discretion to the
extent that there is any is reposed in the good office of the
prosecutor in terms of selecting appropriate charges in a
particular factual setting.
But these statements cannot be viewed in isolation. The judge began the proceeding by
noting that the guidelines were advisory. He also stated that he had examined the 18
U.S.C. § 3553(a) factors to determine whether there were circumstances to support a
sentence less than the guidelines advise. He took statements from Clayton’s mother
and uncle. The judge concluded that, after considering all the factors, there was nothing
to cause him to sentence outside the guidelines. He proceeded to drastically reduce the
sentence originally imposed, partly, it is true, on the basis of a Federal Rule of Criminal
Proceedings Rule 35 (b) motion by the government, but not solely on that basis. The
sentence imposed was, in fact, below that which the government requested. The judge
was well aware of his discretion and he exercised it. Our examination of the case causes
us to agree with counsel’s assessment. Any further proceedings on behalf of Clayton
would be wholly frivolous and without arguable merit within the meaning of Anders v.
California, 386 U.S. 738 (1967).
For the foregoing reasons, counsel’s motion to withdraw is GRANTED and the
appeal is DISMISSED.