Judges: PerCuriam
Filed: Feb. 11, 2015
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 10, 2015 Decided February 11, 2015 Before FRANK H. EASTERBROOK, Circuit Judge KENNETH F. RIPPLE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 14-2742 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 13-10093-001 TARUS A. M
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 10, 2015 Decided February 11, 2015 Before FRANK H. EASTERBROOK, Circuit Judge KENNETH F. RIPPLE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 14-2742 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 13-10093-001 TARUS A. MO..
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NONPRECEDENTIAL DISPOSITION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 10, 2015
Decided February 11, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐2742
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 13‐10093‐001
TARUS A. MOORE, James E. Shadid,
Defendant‐Appellant. Chief Judge.
O R D E R
After observing Tarus Moore sell crack cocaine to an informant on several
occasions, police officers executed a warrant to search his apartment and car, finding
more than 170 grams of crack. Moore pleaded guilty to an indictment alleging that he
possessed at least 28 grams of crack with intent to distribute. See 21 U.S.C. § 841(a)(1).
Given his prior convictions for felony drug offenses, this amount of the drug subjected
him to a statutory minimum of 10 years’ imprisonment. See id. §§ 841(b)(1)(B)(iii), 851.
As a career offender (he also has felony convictions for battery and strangulation), his
guidelines imprisonment range was 262 to 327 months.
No. 14‐2742 Page 2
The government advocated a sentence within the guidelines range. Moore’s
lawyer requested the statutory minimum, mainly on the ground that applying the
career‐offender guideline, see U.S.S.G. § 4B1.1, overstated Moore’s criminal history. The
defense also submitted letters from Moore’s family and friends urging leniency. During
allocution Moore expressed remorse and asserted that he sold drugs out of desperation.
He explained that he is going blind because of sickle‐cell anemia and lacked means of
paying for surgery that would have enabled him to retain some vision in his left eye.
Moore vowed never again to return to “this lifestyle.” The district judge did not believe
Moore’s story that he was selling drugs to pay for medical treatment but agreed with
defense counsel that sentencing Moore as a career offender would overstate his past
crimes. The judge imposed a below‐range sentence of 168 months and an 8‐year term of
supervised release.
Moore filed a notice of appeal, but his appointed lawyer (who also represented
Moore in the district court) asserts that the appeal is frivolous and seeks to withdraw
under Anders v. California, 386 U.S. 738, 744 (1967). Moore opposes the motion.
See CIR. R. 51(b). Counsel has submitted a brief that explains the nature of the case and
addresses the issues which an appeal of this kind might be expected to involve. Because
the analysis in the brief appears to be thorough, we limit our review to the subjects that
counsel discusses plus the additional arguments in Moore’s response. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996).
Counsel informs us that Moore does not wish to challenge his guilty plea, and
Moore does not dispute this assertion. Thus, we need not discuss the plea colloquy or the
voluntariness of the guilty plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel considers whether Moore could question the reasonableness of his
prison sentence but concludes that an appellate claim would be frivolous because the
district judge correctly calculated the guidelines range, considered all of Moore’s
evidence and arguments in mitigation, and imposed a below‐guidelines sentence. In his
Rule 51(b) response, Moore counters that he should have received a 10‐year sentence
because of his worsening health, particularly his failing eyesight. He also maintains that
at sentencing counsel should have argued this point more forcefully. We understand
Moore to be repeating the argument he made to the district court: that he should have
received a lower sentence because he was selling drugs in desperation to save his
No. 14‐2742 Page 3
eyesight. But Moore’s below‐guidelines sentence is presumed reasonable. See Rita v.
United States, 551 U.S. 338, 347 (2007); United States v. Banas, 712 F.3d 1006, 1011–12 (7th
Cir. 2013); United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012). And we see nothing
rebutting that presumption here. The district judge considered but rejected this
contention as false, and we would not disturb the judge’s credibility finding on appeal.
See United States v. Harper, 766 F.3d 741, 744 (7th Cir. 2014); United States v. Etchin, 614
F.3d 726, 738 (7th Cir. 2010). Thus, we agree with counsel that an appellate claim about
the length of Moore’s sentence would be frivolous.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.