NONPRECEDENTIAL DISPOSITION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 14, 2013
Decided February 14, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2355
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 CR 570‐2
MARCEL C. COOK,
Defendant‐Appellant. Ruben Castillo,
Judge.
O R D E R
While investigating an informant’s tip about drug dealing at an apartment building,
federal agents arrested Marcel Cook and found crack cocaine in his car. Cook was charged with
possessing the crack with intent to distribute, 21 U.S.C. § 841(a)(1). He moved to suppress the
drugs and, after that motion was denied, entered a conditional guilty plea, reserving the right
to challenge the ruling on appeal. The district court calculated a guidelines imprisonment range
of 262 to 327 months based on Cook’s status as a career offender, see U.S.S.G. § 4B1.1(b)(1), and
imposed a sentence of 168 months. Cook filed a notice of appeal, but his appointed attorney
asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S.
738 (1967). Cook opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s facially adequate brief and Cook’s response. See United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). Cook has told counsel that he does not wish
No. 12‐2355 Page 2
to challenge his guilty plea unless the suppression ruling is overturned, so counsel properly
omits any discussion of the plea colloquy and the voluntariness of Cook’s plea. See United States
v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
The facts leading to Cook’s arrest are not in dispute. Agents received a tip in late 2010
about drug dealing out of an apartment building on the south side of Chicago. In March 2011
they contacted the building manager, who confirmed complaints from tenants about drug
dealing in a specific apartment. Two days later, while surveiling the apartment’s parking lot
and entrances, the agents saw a white pickup truck pass through the lot, circle the block, and
then return and park. The driver walked into the building, stopping along the way to peer into
the windows of the agents’ surveillance van. Almost simultaneously, two other men arrived
in a second vehicle and also entered the building. The agents recognized one of those men as
the brother of the subject of the informant’s tip. Forty minutes later, the driver of the pickup left
the building with his jacket slung over his left hand, apparently concealing something bulky.
Then a third vehicle—a green car driven by Cook—entered the parking lot, and the driver of
the pickup climbed in on the passenger’s side. The agents could not see what happened inside
the green car, but they watched as Cook exited the parking lot and drove halfway around the
block before stopping. The driver of the white pickup got out holding a paper bag. Concluding
that a drug deal had just taken place, the agents stopped him and seized the paper bag. With
guns drawn, they also arrested Cook, who admitted driving without a license or proof of
insurance. They found over $7,000 in the paper bag and 244 grams of crack in the car’s center
console. The vehicle was impounded. Further investigation established, however, that the drug
deal between Cook and the driver of the pickup was unrelated to the informant’s tip.
Cook sought to suppress the crack from his car on the ground that the agents had lacked
probable cause to arrest him. The district court concluded, though, that the informant’s tip
about drug dealing at the apartment building and the agents’ observations of activities
consistent with drug trafficking had provided probable cause. Alternatively, the court
reasoned, the agents at least had reasonable suspicion supporting an investigatory stop and
would have discovered the crack when Cook’s car was impounded and inventoried after his
arrest for failure to have a license.
In her Anders brief, counsel analyzes whether Cook could challenge the suppression
ruling and concludes that any appellate claim would be frivolous. Cook argues otherwise in
his Rule 51 submission, but we agree with counsel. The agents had observed actions consistent
with a drug deal, including Cook’s swapping a paper bag for a bulky package while driving
around the block with someone he picked up at an apartment building where tenants were
complaining about drug dealing. See United States v. Parra, 402 F.3d 752, 765 (7th Cir. 2005);
United States v. Funches, 327 F.3d 582, 586–87 (7th Cir. 2003). Although the agents had lacked
information specific to Cook before he stumbled into their surveillance, the totality of
No. 12‐2355 Page 3
circumstances created probable cause to arrest him and search his car. See Funches, 327 F.3d at
587; United States v. Carrillo, 269 F.3d 761, 766–67 (7th Cir. 2001).
Counsel also considers challenging Cook’s classification as a career offender but
correctly concludes that any argument would be frivolous. Cook did not object to the accuracy
of the extensive criminal history detailed in his presentence report, which includes his felony
convictions in 2005 for a drug conspiracy and in 1998 for possession of a controlled substance
with intent to deliver. Both are controlled‐substance offenses punishable by more than one year
in prison, thus making Cook a career offender. See U.S.S.G. §§ 4B1.1(a), 4B1.2(b); United States
v. Black, 636 F.3d 893, 898 (7th Cir. 2011); United States v. Thigpen, 456 F.3d 766, 770 (7th Cir.
2006).
Counsel finally evaluates whether Cook could challenge his below‐guidelines prison
sentence as unreasonable and again concludes that this potential claim would be frivolous. We
agree. The district court considered Cook’s arguments in mitigation and decided that 14 years
is the appropriate sentence. Counsel has not identified any ground to rebut the presumption
that this term is reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Jones, 696 F.3d 695, 699 (7th Cir. 2012); United States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009),
nor can we.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.