NONPRECEDENTIAL DISPOSITION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 March 3, 2010
Decided March 9, 2010
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08‐3758
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:06‐cr‐00521
ALEXANDER SERRANO,
Defendant‐Appellant. Blanche M. Manning,
Judge.
O R D E R
Alexander Serrano sold drugs to an informant who approached him wanting to buy
crack cocaine. He pleaded guilty to a single count of distributing a controlled substance, 21
U.S.C. § 841(a)(1), but reserved the right to argue at sentencing that the substance, although
cocaine, was not crack. The sentencing court found that it was crack and, because it
weighed at least 50 grams, imposed the 10‐year statutory minimum, see id.
§ 841(b)(1)(A)(iii).
Serrano filed a notice of appeal, but his appointed lawyers have concluded that the
case is frivolous and move to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Serrano opposes counsel’s motion. See CIR. R. 51(b). We limit our review to the potential
No. 08‐3758 Page 2
issues addressed in counsel’s facially adequate brief and in Serrano’s response. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
The district court concluded, by a preponderance of the evidence, that the cocaine
Serrano sold was crack, not powder or some other form of cocaine base. The testimony of
two forensic chemists supports that finding. The government also called FBI special agent
Michael Culloton, who opined that recordings of conversations Serrano had with the
informant and others established that he “cooked” powder cocaine into crack for the
informant. Because the district court found that the substance was crack, the guidelines
provided for a base offense level of 30. U.S.S.G. § 2D1.1(c)(5). After a 3‐level credit for
acceptance of responsibility, id. § 3E1.1, the imprisonment range would have been 78 to 97
months if not for the statutory minimum.
Serrano has told appellate counsel that he does not want his guilty plea vacated, and
so counsel appropriately refrain from discussing the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002). That
leaves only the sentence. In their Anders submission, counsel first consider whether Serrano
could argue that the district court erroneously admitted Agent Culloton’s testimony and
whether the evidence was sufficient to prove that the substance he distributed was crack.
We agree that these contentions would be frivolous. We have held that drug type may be
proved through testimony from people familiar with the drug, including law enforcement
officers. E.g., United States v. Padilla, 520 F.3d 766, 771 (7th Cir. 2008); United States v. Linton,
235 F.3d 328, 329‐30 (7th Cir. 2000). And the testimony of two forensic chemists and a
veteran FBI agent are more than enough to support the court’s finding that Serrano
distributed crack to the informant. See United States v. Wilborn, 576 F.3d 676, 678‐80 (7th Cir.
2009); United States v. Lake, 500 F.3d 629, 634 (7th Cir. 2007); United States v. Buchanan, 362
F.3d 411, 413 (7th Cir. 2004); see also United States v. Dumes, 313 F.3d 372, 384 (7th Cir. 2002)
(holding that sentencing court did not commit clear error in finding that substance was
crack in view of recorded conversations referring to “cooking” cocaine).
Counsel also consider arguing that the district court should have concluded that the
different statutory minimums for equal weights of crack and powder cocaine are
unconstitutional given the degree of difference and the perceived disproportionate impact
on black defendants. But we have rejected this argument repeatedly, see United States v.
Trice, 484 F.3d 470, 476 (7th Cir. 2007); United States v. Blanding, 53 F.3d 773, 776 (7th Cir.
1995); United States v. Chandler, 996 F.2d 917, 918‐19 (7th Cir. 1993), and thus counsel are
correct to characterize the argument as frivolous. And because Serrano’s constitutional
argument would be frivolous, so too would be his contention that the district court should
have imposed a sentence below the statutory minimum. Even if the court had wanted to
No. 08‐3758 Page 3
impose a sentence below the statutory minimum, sentencing courts have no authority to
disregard statutory minimums. Kimbrough v. United States, 552 U.S. 85, 108 (2007); United
States v. Douglas, 569 F.3d 635, 636 (7th Cir. 2009).
In his Rule 51(b) response, Serrano echoes the potential argument identified by
counsel and then requests that we hold the appeal in abeyance because a bill has been
introduced in Congress that would amend 18 U.S.C. § 3553 to allow sentencing courts to
disregard statutory minimums as a matter of discretion. See Ramos‐Compean Justice Act of
2009, H.R. 3327, 111th Cong. § 2 (2009). We decline to do so.
Accordingly, we GRANT counselʹs motion to withdraw and DISMISS the appeal.