NONPRECEDENTIAL DISPOSITION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 September 22, 2009∗
Decided September 29, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. C OFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-1391 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Indiana,
Plaintiff-Appellee, Hammond Division.
v. No. 2:97-CR-18
Rudy Lozano, Judge.
DONTE T. ROBERTS,
Defendant-Appellant.
Order
After the Sentencing Commission lowered the guideline ranges for crack
cocaine, Donte Roberts filed a motion under 18 U.S.C. §3582(c), asking the judge to
reduce his sentence. The judge found Roberts eligible but declined to reduce the
sentence. The judge observed that Roberts has been formally disciplined more than 20
times for violations of prison rules, that some of his prison misconduct is serious, and
that the frequency of violations has not decreased with time. The judge deemed
Roberts a poor candidate for accelerated release.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 09-1391 Page 2
Roberts filed a notice of appeal. His lawyer has submitted an Anders brief
explaining why the appeal is frivolous. Roberts was invited to respond, see Circuit Rule
51, and has not done so. There are only three potential appellate arguments: that
reduction is mandatory; that the judge misunderstood Roberts’s intra-prison record; or
that failure to reduce the sentence was an abuse of discretion. The statute shows that
the district judge is not required to reduce a sentence just because the range has gone
down, so the first argument would be frivolous. Roberts has never argued that the
judge misunderstood the number or gravity of his intra-prison transgressions, ruling
out the second line of argument. And given his extensive intra-prison record, it would
be impossible to say that refusing to expedite his release from prison is an abuse of
discretion.
Roberts argued in the district court that the judge could use §3582(c) to apply
United States v. Booker, 543 U.S. 220 (2005), or Kimbrough v. United States, 552 U.S. 85
(2007), retroactively. The judge properly rejected that contention. See United States v.
Cunningham, 554 F.3d 703 (7th Cir. 2009).
We agree with counsel’s assessment that the appeal is frivolous. Counsel’s
motion to withdraw is granted, and the appeal is dismissed.