NONPRECEDENTIAL DISPOSITION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 August 18, 2009
Decided November 5, 2009
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐1346
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 08‐40006‐003
MARVIN JAMES HAMILTON, Joe B. McDade,
Defendant‐Appellant. Judge.
O R D E R
Marvin Hamilton and several other men worked together to obtain powder cocaine
and “cook” it into crack for resale. The conspiracy came to an abrupt conclusion when two
of Hamilton’s coconspirators were pulled over for a traffic offense with over 200 grams of
crack in their car. Hamilton was convicted after a jury trial of conspiracy to possess, and
possession with intent to distribute, crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). Because
of the amount of crack and Hamilton’s prior felony drug conviction, he faced a 20‐year
No. 09‐1346 Page 2
minimum prison term on each count. See id. § 841(b)(1)(A). The district court calculated a
guidelines imprisonment range of 324 to 450 months but imposed the minimum term on
both counts, to run concurrently. Hamilton filed a notice of appeal, but his appointed
counsel has moved to withdraw because she cannot discern a nonfrivolous basis for appeal.
See Anders v. California, 386 U.S. 738 (1967). Hamilton has not responded to our invitation to
comment on counsel’s motion. See CIR. R. 51(b). Our review is confined to the potential
issues identified in counsel’s facially adequate supporting brief. See United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
All three of Hamilton’s coconspirators testified against him at trial, and counsel
perceives no possible claims concerning Hamilton’s convictions. Instead she focuses on
possible arguments about Hamilton’s sentence. Counsel first considers whether Hamilton
could challenge the district court’s addition of two offense levels for his role in the charged
conspiracy. See U.S.S.G. § 3B1.1(c). As the district court noted, Hamilton merely recruited a
fellow conspirator to purchase supplies and provide the premises where they “cooked”
powder cocaine into crack. So, there is little evidence to support a leadership enhancement.
However, as counsel points out, even if Hamilton could successfully challenge the § 3B1.1(c)
increase, he would still be subject to the 20‐year statutory minimum on each count given the
amount of crack involved and his prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A);
United States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007). So, any error in the guidelines
calculation would be harmless and would not alter his sentence.
Counsel also considers whether Hamilton could argue that the district court erred in
calculating the quantity of crack attributed to him. The court relied on the facts recounted
in the presentence report by the probation officer, who estimated that Hamilton had
manufactured at least 700 grams of crack with his coconspirators. The probation officer also
recounted that Hamilton had sold at least 250 grams of crack and purchased at least 350
grams. Consequently, the court’s conservative finding that Hamilton was tied to at least 500
grams is supported by ample evidence, and any contrary argument would be frivolous. See,
e.g., United States v. Fuller, 532 F.3d 656, 666 (7th Cir. 2008). Again, though, the guidelines
calculation is insignificant, since even 50 grams of crack was enough to trigger the
mandatory terms that Hamilton received. See 21 U.S.C. § 841(b)(1)(A).
Accordingly, the motion to withdraw is GRANTED, and the appeal is DISMISSED.