Court: Court of Appeals for the Seventh Circuit; July 15, 2009; Federal Appellate Court
Errick Hawkins pleaded guilty to four counts of distributing over five grams of crack cocaine and one count of possessing over 50 grams with intent to sell. A sixth count for possessing a firearm during a drug trafficking crime was dropped after a hung jury. He received a 120-month sentence, the statutory minimum, and has since appealed. His appointed counsel, however, found no meritorious issues for appeal and sought to withdraw, in line with Anders v. California. Hawkins did not respond to a request for comments on this motion, prompting a review of the issues identified by counsel.
Counsel confirmed that Hawkins did not wish to withdraw his guilty plea, thus avoiding questions of its voluntariness. A confidential informant purchased crack cocaine from Hawkins on four occasions, and a search of his residence uncovered additional drugs and firearms. The presentence report calculated Hawkins’s offense level at 29, considering a base level of 30 for the drug offenses, a 2-point enhancement for firearm possession, and a 3-point reduction for acceptance of responsibility. With no criminal history points, Hawkins was categorized as I, resulting in an initial guideline range of 87 to 108 months, adjusted to 120 months due to a statutory minimum for his possession charge.
Hawkins contested the presentence report, claiming the drugs were not crack cocaine. At sentencing, the government provided testimony from a police officer and a chemist, establishing that the substance was indeed crack, which the district judge affirmed as supported by a preponderance of evidence. Counsel considered whether Hawkins could challenge this determination for clear error but deemed such a challenge frivolous given the corroborating evidence. Furthermore, at Hawkins's request, counsel evaluated the possibility of contesting a two-level enhancement for possessing a dangerous weapon.
Hawkins did not object to the weapon enhancement during sentencing, leading to a review for plain error, which was deemed frivolous. Under U.S.S.G. 2D1.1, the adjustment applies if a weapon is present unless a clear improbability of connection exists. In Hawkins's case, five weapons were found near a significant quantity of crack intended for sale, indicating a strong connection. Hawkins's argument regarding the dismissal of the gun charge after a hung jury was rejected, as sufficient evidence supported the district court's finding of weapon possession related to the offense. Even if the enhancement were successfully challenged, Hawkins would still face a ten-year statutory minimum sentence. Challenges to the reasonableness of the sentence were also considered frivolous, as Hawkins requested the statutory minimum, which the judge could not reduce. Additionally, it was noted that a probation officer's error in calculating drug weight affected Hawkins's offense level, which would have been 31, leading to a guideline range of 108 to 135 months had the correct weight been used. Ultimately, counsel's motion to withdraw was granted, and Hawkins's appeal was dismissed.
