NONPRECEDENTIAL DISPOSITION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 November 12, 2009*
Decided December 31, 2009
Before
JOHN L. COFFEY, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2259
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. 3:08CR30137
VERNON B. ROLLINS David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
Vernon Rollins pled guilty to three counts of distributing crack cocaine. See 21 U.S.C.
§ 841(a)(1); § 841(b)(1)(C). At his plea hearing Rollins admitted that he distributed a total of
4.9 grams of crack over the course of three separate drug sales. At sentencing, the district
court found him accountable for 2.24 kilograms of crack as relevant conduct. See U.S.S.G.
§ 1B1.3(a)(1). The court imposed a below‐guidelines sentence of 120 months’ imprisonment
for each count, with each sentence to run concurrently with each other. Rollins filed a notice
*
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. FED. R. APP. P.
34(a)(2).
No. 09‐2259 Page 2
of appeal, but his appointed counsel moves to withdraw because he is unable to identify a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). Rollins
opposes counsel’s motion. See CIR. R. 51(b). We limit our review to the potential issues
addressed in counsel’s facially adequate brief and in Rollins’s response. See United States v.
Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Both counsel and Rollins consider whether the district court erred in attributing to
Rollins 2.24 kilograms of crack as relevant conduct. Rollins specifically challenges the
court’s reliance on the testimony of certain government witnesses, Dekal James and
Broderick Wooters, both of whom had pled guilty to distributing crack and were
cooperating with the government in hopes of receiving reduced sentences. James testified
that from December 2005 to September 2006, both he and Rollins frequented the same drug
house in Mt. Vernon, Illinois, where he routinely observed Rollins buying 1 to 2 ounces of
crack and, on multiple occasions, saw Rollins buying larger quantities ranging from 2.25
ounces to 18 ounces. Wooters testified that Rollins’s mother is his godmother, and that
Rollins began selling him drugs when he was 16 years of age, and further, that Rollins sold
him an ounce of crack once or twice a week during the early summer of 2008. The district
court credited both James and Wooters and, based on James’s testimony alone, found
Rollins responsible for 2.04 kilograms.
We agree with counsel that any challenge to the relevant drug quantity would be
frivolous. The government must prove uncharged drug quantities by a preponderance of
the evidence, United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007), and a sentencing court
may assess relevant conduct by considering any evidence that bears a “sufficient indicia of
reliability,” U.S.S.G. § 6A1.3(a); see United States v. Hankton, 432 F.3d 779, 789‐90 (7th Cir.
2005). A district court is entitled to credit testimony regardless of whether it is
corroborated. See, e.g., United States v. Sainz‐Preciado, 566 F.3d 708, 713‐14 (7th Cir. 2009).
We review the district court’s credibility determinations for clear error. See United States v.
Clark, 538 F.3d 803, 813 (7th Cir. 2008); United States v. Blalock, 321 F.3d 686, 690 (7th Cir.
2003). The court explicitly found the testimony of both witnesses credible—a finding we
would not disturb on clear‐error review. See Clark, 538 F.3d at 813; Blalock, 321 F.3d at 690.
Rollins provided no evidence at sentencing in contradiction of the witnesses’
testimony—save for his unsworn statement during allocution that the witnesses were
lying—nor did he establish that the court relied on inaccurate information. See Sainz‐
Preciado, 566 F.3d at 713; Hankton, 432 F.3d at 790. Any argument challenging the
government witnesses’ credibility would be frivolous.
Rollins also contends that the inclusion of additional drug quantities as relevant
conduct was improper and unconstitutional because the additional amounts were not
charged in the indictment nor presented to a jury. We have repeatedly explained that drug
No. 09‐2259 Page 3
quantity need only be charged in the indictment or found beyond a reasonable doubt
insofar as it establishes the statutory maximum sentence. See United States v. Washington,
558 F.3d 716, 719 (7th Cir. 2009) (citing United States v. Booker, 543 U.S. 220, 233, 245 (2005));
United States v. Kelly, 519 F.3d 355, 363 (7th Cir. 2008); United States v. Hawkins, 480 F.3d 476,
477‐78 (7th Cir. 2007); United States v. Martinez, 301 F.3d 860, 864‐65 (7th Cir. 2002). In this
case, Rollins pled guilty to three counts of distributing less than 5 grams of cocaine base and
was therefore sentenced under § 841(b)(1)(C), which imposed a statutory maximum
sentence of 20 years for each count. The district court considered the additional quantities
of crack only to calculate Rollins’s advisory guidelines range, and his resulting sentence of
120 months for each count is well within the statutory maximum sentence he could have
received for distributing less than 5 grams of crack. Thus, the additional drug amounts did
not need to be charged in the indictment nor presented to the jury because the drug
amounts did not effect the statutory maximum sentence.
Finally, Rollins argues that his trial counsel provided ineffective assistance. A claim
of ineffective assistance, however, is best pursued in a collateral proceeding where the
record must be fully developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003);
United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.