Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 471-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE, EVANS, and SYKES, Circuit Judges.*fn1
This successive appeal requires us to consider the resentencing of Ray Longstreet and Michael Ervin, members of a Chicago operation that trafficked heavily in various controlled substances in the early 2000s. In our earlier opinion, we affirmed Longstreet's conviction but ordered a limited remand asking whether the district court wanted to resentence him in light of the Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85 (2007). United States v. Longstreet, 567 F.3d 911 (7th Cir. 2009). Ervin pleaded guilty and appealed only his sentence; we ordered a limited remand in his case as well. Id. The district court advised us that it would like to reconsider the sentences, so we vacated the sentences and remanded for resentencing. United States v. Longstreet, 359 F. App'x 673 (7th Cir. 2010).
On remand the district court lowered Longstreet's sentence from 456 to 360 months and lowered Ervin's sentence from 300 to 240 months. Both men again appeal. Because the district court did not err in calculating the drug quantity attributable to Longstreet, we affirm his sentence. Ervin's appeal presents no non-frivolous issues, so we grant his counsel's Anders motion to withdraw and dismiss Ervin's appeal.
A full recitation of the facts is found in our previous opinion and will not be repeated here. A jury convicted Longstreet, the chief of a Chicago drug-trafficking operation, of, among other things, conspiracy to possess with intent to distribute controlled substances, including cocaine, crack, heroin, and marijuana. Ervin, Longstreet's right-hand man, pleaded guilty to the conspiracy charge and two related offenses. Longstreet and Ervin were sentenced to 456 and 300 months in prison, respectively, based on crack-cocaine quantities. Both men appealed.
Shortly thereafter, the Supreme Court decided Kimbrough, which permits district courts to deviate from the sentencing guidelines' crack-to-powder ratio. Accordingly, we affirmed Longstreet's conviction but ordered a limited remand to allow the district court to consider whether to resentence Longstreet and Ervin in light of Kimbrough. See Longstreet, 567 F.3d at 926-27. The court answered affirmatively, so we vacated the sentences and remanded for resentencing. See Longstreet, 359 F. App'x 673.
At resentencing the central issue for Longstreet was the amount of crack attributable to him. The district court relied on the testimony of Anthony Sutton, one of Longstreet's coconspirators. Sutton testified at trial that he sold an average of 1.5 ounces of crack per day, seven days a week, on a particular corner in Chicago. The sales began in either the summer of 2002 or the summer of 2003 until Sutton's arrest in May 2005. Sutton paid "rent" for his corner to Kenneth Wallace, an associate of Longstreet, until July 2004, at which point he paid Longstreet's brother and later Ervin.
But Sutton also testified that he did not think his rent to Wallace was going to Longstreet. As a result Longstreet argued that he was not responsible for Sutton's sales prior to July 2004. Although the district judge deemed the evidence sufficient to attribute all of Sutton's sales to Longstreet, he noted that Longstreet's version of the facts would still yield a guidelines range of 360 months to life. For that reason the judge accepted Longstreet's argument.
Longstreet also disputed the amount of drugs Sutton sold during this period. First, Longstreet argued that Sutton's testimony was generally unreliable because he waffled about which year he started selling on the corner. Second, Longstreet argued that because Sutton failed to specify over what time period he sold an average of 1.5 ounces of crack per day, it would be unreliable to use that amount. The judge found Sutton's testimony reliable and applied the 1.5-ounces-perday average to the entire time Sutton sold drugs on the corner. The judge acknowledged that Sutton's average could have included a higher per-day sales rate prior to July 2004. But the judge ultimately concluded that any artificial inflation would be cancelled out by the decision to credit Longstreet's argument that the additional drugs Sutton sold between 2003 and 2004 should not be attributed to him.
The court therefore held Longstreet responsible for 12 kilograms of crack; that is, ten months times 1.5 ounces per day. With additions not relevant here, Longstreet's advisory guidelines range was 360 months to life. The court imposed a sentence of 360 months.
Ervin, meanwhile, qualified as a career offender, which resulted in a guidelines range (without drug quantities) of 262 to 327 months. With drug quantities Ervin's range likely would have been 360 months to life. But the judge aimed to achieve rough proportionality between Ervin's sentence and those of his coconspirators, so ...