NONPRECEDENTIAL DISPOSITION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 May 6, 2009
Decided May 6, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1419
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 07‐CR‐054‐001
JEFFREY L. CARTER
Defendant‐Appellant. J.P. Stadtmueller,
Judge.
O R D E R
After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C.
§ 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a
notice of appeal, but his appointed counsel now seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal.
Because counsel’s supporting brief is adequate, we limit our review to the potential issues
identified in counsel’s brief and Carter’s Circuit Rule 51(b) response to his lawyer’s motion
to withdraw. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
In 2007 police arrested Carter after monitoring a drug deal between Carter and an
informant, Tremaine Gilmore. Gilmore had called Carter to arrange to buy two ounces of
No. 08‐1419 Page 2
crack. Police drove Gilmore to the street corner where he had agreed to meet Carter, and
Gilmore phoned Carter to complete the deal. Carter told Gilmore that he was sending a
woman wearing a blue jogging suit to deliver the drugs. The police then saw a female (who
was a minor) fitting that description, arrested her, and confiscated two bags of crack. The
police also arrested Carter, who was nearby, and seized the keys in his possession.
After Carter’s arrest, police officers weighed the crack seized from the girl as 55.96
grams. A forensic analyst in the Wisconsin State Crime Lab, however, weighed it at 38.1678
grams, and later testified at trial that the difference could have resulted from a loss of
moisture. The police also found guns and more drugs in the home of Lakesha Lampkin,
whose keys Carter had been found possessing.
The government indicted Carter on four counts. In Count I—the only count
involving Carter’s drug sale to Gilmore—the government charged Carter with selling 50
grams or more of crack. See 21 U.S.C. § 841(a)(1). In Counts II and III, related to the guns
and drugs found in Lampkin’s home, Carter was charged with possessing crack with the
intent to sell it, see id., and for being a felon in possession of a firearm, see 21 U.S.C.
§ 922(g)(1). In Count IV, the government charged Carter with selling crack in an unrelated
incident in 2005. A jury convicted Carter on the first count, but found that he distributed
less than 50 grams of crack. It acquitted him of the second and third counts. On the fourth
count, the jury was unable to reach a verdict, and after the court declared a mistrial, the
government dropped the charge.
At sentencing the government argued that in determining Carter’s sentencing range,
the district judge should consider the conduct charged under counts two through four, even
though the jury had not found Carter guilty beyond a reasonable doubt on those charges.
The judge refused, and a probation officer calculated Carter’s offense level using a drug
quantity between 35 grams and 50 grams, resulting in a base offense level of 28. See U.S.S.G.
§ 2D1.1(c)(6). After a two‐point increase for using a minor to commit the offense, see
U.S.S.G. § 3B1.4, the probation officer calculated Carter’s offense level to be 30. Based on his
criminal history category of V, Carter’s guidelines range was 151 to 188 months, and the
judge sentenced him to 180 months’ imprisonment.
Counsel and Carter first consider whether Carter could argue that the evidence was
insufficient to support Carter’s conviction on the first count. We would uphold a juryʹs
verdict if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Squibb, 534 F.3d 668, 671 (7th Cir. 2008)
(internal quotation marks omitted). To convict Carter on the first count, “the government
had to establish two elements: (1) that he knowingly distributed . . . cocaine base and (2)
No. 08‐1419 Page 3
that he knew that what he was distributing was a controlled substance.” 21 U.S.C.
§ 841(a)(1).” United States v. Graham, 315 F.3d 777, 781 (7th Cir. 2003). We agree with
counsel that the government presented sufficient evidence for a rational trier of fact to find
Carter guilty of knowingly distributing crack: Gilmore testified that he had arranged to
purchase two ounces of crack from Carter and that Carter had told him to expect a girl in a
blue jogging suit; several police officers testified about the details of the transaction,
including the arrest of the delivery girl wearing the jogging suit holding two ounces of
crack; police officers testified that they arrested Carter near the location of the would‐be
sale; and law enforcement agents testified that the substance was, in fact, crack.
Carter responds that many of the government witnesses had something to gain from
testifying against him, and thus their testimony was not credible. But credibility is the
province of the jury, and it could rationally reject an argument that the witnesses should not
be believed. See United States v. Bailey, 510 F.3d 726, 734 (7th Cir. 2007) (holding that the fact
that a witness cooperated in exchange for a shortened prison sentence is insufficient to
upset a jury’s decision to credit the testimony). Carter also argues that because he was
acquitted of possessing the guns and drugs found at Lampkin’s home, he is innocent on
Count I, but the conduct underlying those two counts is unrelated to the conduct for which
he was convicted on Count I, the sale of drugs to Gilmore.
Counsel next considers whether Carter could argue on appeal that he received
ineffective assistance of counsel. But a claim of ineffective assistance of counsel should not
be raised on direct appeal unless ineffectiveness is apparent from the trial record. Here
counsel can point to nothing within the record to support a claim for ineffective assistance
of counsel. United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). Thus any argument
on direct appeal that Carter’s counsel was ineffective would be pointless.
Carter and counsel also consider whether Carter could challenge the calculation of
his guidelines range. Carter maintains that the district court miscalculated his criminal
history score by improperly using the guideline for prior convictions for contempt of
court—U.S.S.G. § 4A1.2(c)(1)—to add points to his score for his prior conviction for bail
jumping. This too is a frivolous argument because the district court did not even use
§ 4A1.2(c)(1) in computing Carter’s criminal history. Rather, it properly calculated Carter’s
criminal history using § 4A1.2(k), based on Carter’s prior revocation of probation, to which
the guideline expressly applies. Counsel also raises the possibility that Carter could
challenge the four‐point increase in his offense level for the use of a minor, based on
Carter’s assertion that he did not know that she was under 18. We agree with counsel that
this argument, too, would necessarily fail: knowledge is not required for an enhancement
under § 3B1.4. See United States v. Ceballos, 302 F.3d 679, 697 (7th Cir. 2002).
No. 08‐1419 Page 4
Carter also maintains that, after the sentencing judge rejected the government’s
request to find that he was responsible for selling more than 50 grams of crack, the judge
erred by failing to explain the reasons for finding him responsible for selling between 35
grams and 50 grams of crack. This argument would be frivolous because the record makes
clear that the judge based his finding on the weight calculated by the forensic analyst at the
Wisconsin State Crime Lab: over 38 grams.
Carter also argues that district court erred in failing to apply retroactively the
reduced offense levels for crack offenses. See U.S.S.G. § 2D1.1, Supp. to App. C 226‐31
(2008) (Amendment 706). This is also a frivolous argument because Carter was sentenced
under the 2007 guidelines that already included the reduced offense levels for crack.
Compare U.S.S.G. § 2D1.1(c)(5) (2006) (base offense level of 30 for 35 to 50 grams of crack)
with U.S.S.G § 2D1.1(c)(6) (2007) (level of 28 for same amount).
Finally counsel considers whether Carter could challenge the reasonableness of his
sentence. But Carter’s guidelines sentence is presumptively reasonable. See United States v.
Cano‐Rodriguez, 552 F3.d 637, 638 (7th Cir. 2009). Furthermore, the district court justified its
sentence with reasons that adhere to the relevant considerations under 18 U.S.C. § 3353(a),
and counsel can point to nothing that might arguably rebut the presumption of
reasonableness. See United States v. Gordon, 513 F.3d 659, 666 (7th Cir. 2008).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.