NONPRECEDENTIAL DISPOSITION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 February 16, 2011
Decided February 17, 2011
Before
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐2134
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 09‐CR‐147‐C‐01
SCORPIO M. ROBINSON, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Authorities in Madison, Wisconsin, began investigating Scorpio Robinson after
finding guns and crack cocaine in his girlfriend’s apartment. An undercover officer made a
series of crack purchases by placing telephone orders with Robinson and receiving
deliveries from his two coconspirators. Robinson was on electronic monitoring for several
state cases and could not leave his apartment, so he “cooked” the crack and told the others
where to deliver it. He pleaded guilty to conspiracy to possess and distribute crack, 21
U.S.C. §§ 846, 841(a)(1), which, because the amount of crack was at least 5 grams, carried a
statutory minimum prison term of 5 years, id. §§ 846, 841(b)(1)(B)(iii). The district court
calculated a guidelines imprisonment range of 108 to 135 months but sentenced Robinson
below that range to 84 months plus 5 years’ supervised release.
No. 10‐2134 Page 2
Robinson filed a notice of appeal, but his appointed lawyer seeks to withdraw
because he cannot identify a nonfrivolous ground to pursue. See Anders v. California, 386
U.S. 738 (1967). Robinson has not accepted our invitation to comment on counselʹs
submission. See CIR. R. 51(b). We review only the potential issues identified in counselʹs
facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Robinson has given no indication that he wants his guilty plea vacated, so counsel properly
omits discussion of 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).
Counsel has evaluated whether Robinson might challenge the guidelines calculations
or the length of his prison term but is unable to find a potential issue about either. As
counsel notes, Robinson agreed with the probation officer’s calculations, which the district
court adopted without change. The court imposed a prison term 24 months below the low
end of the guidelines range after assessing the factors in 18 U.S.C. § 3553(a) and considering
Robinson’s arguments in mitigation, including his family’s support, the absence of previous
felony convictions or significant jail time, evidence suggesting that he did not have a
constant stream or large quantity of crack available to distribute, and the sentencing
differential between crack and powder cocaine. Counsel cannot identify any reason to
disregard the presumption of reasonableness applicable to sentences below the guidelines
range, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Pape, 601 F.3d 743,
746 (7th Cir. 2010), nor can we.
Counsel also questions whether Robinson could challenge his prison sentence in
light of the Fair Sentencing Act of 2010, Pub. L. No. 111‐220, § 2(a)(2), 124 Stat. 2372 (2010),
which increased the amounts of crack cocaine necessary to trigger the enhanced statutory
penalties in § 841(b)(1)(B)(iii). But counsel is correct that an appellate claim based on this
enactment would be frivolous, not only because it was passed after Robinson’s conspiracy
ended and is not retroactive, United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010), but also
because the crack amount found by the district court—at least 35 grams—would yield a 5‐
year minimum even under the amended version of the statute, compare 21 U.S.C.
§ 841(b)(1)(B)(iii) (2006) with § 2(a)(2), 124 Stat. at 2372.
Counselʹs motion to withdraw is GRANTED, and the appeal is DISMISSED.