NONPRECEDENTIAL DISPOSITION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 January 22, 2009
Decided February 3, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1399
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 07‐CR‐116‐S‐01
TIMOTHY M. SWEETLAND,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Timothy Sweetland pleaded guilty to conspiring to possess with intent to
distribute methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), and the district court
sentenced him to 87 months’ imprisonment. Sweetland filed a notice of appeal, but his
appointed counsel moves to withdraw because he is unable to discern a nonfrivolous
basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). Sweetland has not
accepted our invitation to comment on counsel’s submission under Circuit Rule 51(b).
We therefore limit our review to the potential issues identified in counsel’s facially
adequate brief. United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 08‐1399 Page 2
Sweetland, a California resident, met Michael Kitchen while visiting a friend in
Wisconsin. Kitchen was selling methamphetamine in Wisconsin, and Sweetland agreed
to become a supplier by purchasing the drug in California and then shipping it to
Wisconsin. Sweetland set the price, and Kitchen began placing regular orders. After
Sweetland had filled Kitchen’s orders for a couple of months, Sweetland introduced
Kitchen to Lauren Pitchell, who also became a supplier. Kitchen continued to place
orders and send money to Sweetland, and Sweetland would instruct Pitchell to fill the
orders. Sweetland in turn would give Pitchell a share of the receipts, while keeping the
greater part for himself. This arrangement continued for approximately six months
until law enforcement discovered the operation, and all three were arrested. Sweetland
later pleaded guilty to the sole charge of conspiring to possess with intent to distribute
methamphetamine.
Counsel first considers whether Sweetland could challenge his conviction. But as
counsel acknowledges, Sweetland does not want his guilty plea set aside, and
accordingly, counsel properly omits any discussion about the adequacy of Sweetland’s
plea colloquy or the voluntariness of his plea. See United States v. Knox, 287 F.3d 667,
670‐72 (7th Cir. 2002).
Counsel next considers whether Sweetland could challenge the court’s two‐level
upward adjustment for Sweetland’s role in the offense as “an organizer, leader,
manager, or supervisor.” See U.S.S.G. § 3B1.1(c). Because Sweetland objected to the
adjustment at sentencing, our review of the court’s finding would be for clear error. See
United States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007). When determining whether to
apply the upward adjustment under § 3B1.1, the guidelines instruct the court to
consider seven factors: “the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of participation in
planning and organizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, cmt. n.4; United
States v. Pira, 535 F.3d 724, 730 (7th Cir. 2008). But any challenge to the district court’s
ruling here would be frivolous. The court considered Sweetland’s recruitment of
Pitchell, his decisions in setting the price, and his receipt of the lion’s share of the
proceeds. This finding is supported by the evidence and would not be clearly
erroneous. See United States v. Martinez, 520 F.3d 749, 752 (7th Cir. 2008) (upholding
application of § 3B1.1(c) where defendant arranged logistics and coordinated activities
of others in drug‐trafficking conspiracy).
No. 08‐1399 Page 3
Finally, counsel considers a potential challenge to the reasonableness of
Sweetland’s sentence, given that his 87‐month sentence is longer than the one‐year
sentence and the four‐and‐a‐half‐year sentence that Kitchen and Pitchell, respectively,
received. However, we do not view the discrepancy between sentences of co‐
defendants as a basis for challenging a sentence. United States v. Omole, 523 F.3d 691,
700 (7th Cir. 2008). We will only disturb a sentence on the basis of sentence disparity if
it diverges from all other similar sentences imposed nationwide. Id.; United States v.
Davila‐Rodriguez, 468 F.3d 1012, 1014 (7th Cir. 2006). In any event, the court correctly
calculated the applicable guidelines range, and after carefully adjusting Sweetland’s
criminal history category from IV to III, an adjustment that was certainly in Sweetland’s
favor, the court sentenced Sweetland within the guidelines range as calculated; we
therefore would presume his sentence reasonable. See Rita v. United States, 127 S. Ct.
2456, 2462‐64 (2007); United States v. Hendrix, 509 F.3d 362, 376 (7th Cir. 2007). And
although the court did not explicitly address the question of sentencing disparity, its
correct calculation of the guidelines range makes consideration of it implicit. See Gall v.
United States, 128 S. Ct. 586, 599 (2007); Omole, 523 F.3d at 697‐98.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.