United States of America v. Akeem Dillon

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2023
Decided February 15, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1503
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AKEEM DILLON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-CR-00024(1)
Matthew F. Kennelly,
Judge.
O R D E R
Akeem Dillon was at Tyrone Bush’s apartment when police arrested him on
drug and firearm charges. Bush’s nephew and caretaker, Derrick Livingston, lived in
the apartment, and he called 911 while Dillon was there to report that a man with a gun
was in the apartment. When the police arrived, Livingston invited them inside and led
an officer to Bush’s bedroom, where the officer saw a firearm on the floor. Livingston
told the officer that Dillon, who was detained in the living room, had been incarcerated.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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At that point the officer arrested Dillon (who never contested the legality of the arrest)
and searched him, finding drugs in his pocket.
Dillon was charged with unlawfully possessing a firearm, 18 U.S.C. § 922(g), and
possessing fentanyl with intent to distribute it, 21 U.S.C. § 841(a)(1). He moved to
suppress the firearm and drug evidence, arguing that Livingston lacked authority to
consent to a search of the apartment, and that the search of his person was not justified.
After an evidentiary hearing, the district court denied the motion. Dillon later pleaded
guilty to the firearm charge (the drug charge was dismissed) but preserved his right to
appeal the ruling on his motion to suppress. See FED. R. C RIM. P. 11(a)(2). The district
court accepted the plea and sentenced Dillon to 64 months’ imprisonment.
Dillon appeals, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief
explains the nature of the case and discusses the potential issues that an appeal like this
would be expected to involve. Because his analysis appears thorough, and Dillon has
not responded to the motion, see C IR . R. 51(b), we limit our review to the potential
issues that counsel identifies. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Dillon could reasonably challenge the court’s
denial of his motion to suppress and determines that he could not. At the evidentiary
hearing, Bush and Livingston testified that Livingston lived in the apartment and had
access to all its rooms; the government also introduced recordings from the officers’
body cameras and the 911 call. After evaluating this evidence, the court found that
Livingston resided with Bush and had full access to the apartment, including Bush’s
bedroom. The court found that Dillon, on the other hand, visited the apartment only
occasionally, had not spent the night recently, and was permitted access only to the
apartment’s common areas. It concluded that Dillon did not have standing to challenge
the search, but even if he did, the search was proper because Livingston consented to it.
It would be fruitless to argue that the officers violated Dillon’s Fourth
Amendment rights by searching Bush’s apartment or bedroom. To suppress the firearm
evidence, Dillon had to establish that (1) he had a legitimate expectation of privacy in
Bush’s apartment (or “standing”), see United States v. Mendoza, 438 F.3d 792, 795 (7th Cir.
2006), and (2) Livingston did not have the actual or apparent authority to consent to its
search, see United States v. Wright, 838 F.3d 880, 884–85 (7th Cir. 2016). Even if Dillon had
standing to contest the bedroom’s search, his challenge would necessarily fail because
the district court found that Livingston was a resident of the apartment with access to

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all its rooms. A challenge to that finding—reviewed for clear error, see id.—would go
nowhere because the testimony amply supported it. And as a resident of the apartment
with full access to the rooms, Livingston had a reasonable expectation of privacy in the
bedroom with authority to consent to its search. See id. (explaining that consent to a
search may be obtained from people with joint access to the searched property).
Counsel next rightly observes that any argument that the officers searched Dillon
unconstitutionally would also be groundless. See Riley v. California, 573 U.S. 373, 384
(2014). Dillon did not contest the legality of the arrest; thus we would review the district
court’s acceptance of the arrest’s legality for plain error. United States v. Radford, 39 F.4th
377, 387 (7th Cir. 2022). But nothing in the record contradicts the court’s finding that the
officers had probable cause—after Livingston told them that Dillon had a prison record
and a gun—to believe that Dillon unlawfully possessed the gun found on the floor. And
the arrest allowed for the search of Dillon’s person that followed. Riley, 573 U.S. at 384.
Counsel next informs us that he consulted with Dillon and confirmed that Dillon
does not wish to withdraw his plea. Accordingly, counsel appropriately does not
discuss potential challenges to its validity. 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 then contemplates challenges to Dillon’s sentence, starting with
potential procedural errors. He accurately notes that the 64-month sentence was below
the maximum of 120 months, see 18 U.S.C. § 924(a)(2), and the 36-month term of
supervised release, $100 special assessment, and firearm forfeiture were also lawful.
See 18 U.S.C. §§ 3583(b)(2) (supervised release), 3013(a)(2)(A) (special assessment),
924(d)(1) (forfeiture); 28 U.S.C. § 2461(c) (forfeiture). He also rightly concludes that
Dillon’s guidelines range was correctly calculated. For possessing a firearm as a felon,
Dillon’s base offense level was 14, U.S.S.G. § 2K2.1(a)(6)(A), enhanced by two levels
because the firearm was stolen, id. § 2K2.1(b)(4)(A), four levels for possessing the
firearm in connection to a drug trafficking offense, id. § 2K2.1(b)(6)(B), and two levels
for obstructing justice by soliciting a false affidavit from Bush, id. § 3C1.1. After
subtracting two levels for accepting responsibility, id. § 3E1.1(a), the resulting offense
level of 20, combined with a criminal history category of VI based on Dillon’s 16
criminal history points, id. § 4A1.1, yielded a guidelines range of 70 to 87 months’
imprisonment. Id. Ch. 5, Pt. A. We see no error in counsel’s conclusion that this range
was appropriate.

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Continuing with his procedural review, counsel also rightly concludes that the
district court adequately considered each of Dillon’s principal arguments under the
sentencing factors of 18 U.S.C. § 3553(a). See United States v. Barr, 960 F.3d 906, 914
(7th Cir. 2020). The court considered Dillon’s arguments that the gun was inoperable
and that he did not know it was stolen. But it reasonably determined that the possession
offense was serious because Bush and Livingston did not know that the gun was
nonfunctional and thus could still fear Dillon’s use of it. See 18 U.S.C. § 3553(a)(2)(A).
The court also considered Dillon’s argument that he was rehabilitated. But it explained
that it took his argument “with a grain of salt” because Dillon committed new crimes
despite his prior convictions. See id. § 3553(a)(1). The court acknowledged Dillon’s
argument that he did not threaten Bush after his arrest. But it permissibly ruled that
Dillon improperly tried to influence Bush by posing as his own mother over the phone
to get Bush to retract his statement that Dillon possessed the firearm or drugs; therefore,
his post-arrest conduct was an obstructive and an aggravating factor. See id.
§ 3553(a)(2)(A). Finally, the court recognized hardships that Dillon faced in pretrial
custody, see id., and agreed with him that he should receive credit that he requested for
the time spent in state custody. In light of that credit, the court lowered his sentence to
64 months (six months below the guidelines range).
Based on the court’s balancing of the above sentencing factors, we agree with
counsel that it would also be frivolous to challenge the substantive reasonableness of
Dillon’s sentence. We would presume his below-guidelines sentence to be reasonable
against a challenge that it is too high, United States v. De La Torre, 940 F.3d 938, 953
(7th Cir. 2019), and we see no basis for rebutting that presumption. As just discussed, in
explaining its rejection of Dillon’s arguments, the court reasonably weighed the
§ 3553(a) factors—Dillon’s background, the seriousness of his crime, and his post-arrest
conduct.
Finally, counsel explains why a challenge to the district court’s imposition of a
36-month term of supervised release would be frivolous. The term was well supported
by the court’s explanation of the prison term; thus no independent explanation was
necessary. See United States v. Bloch, 825 F.3d 862, 870–71 (7th Cir. 2016). Further, Dillon
waived any challenge to the conditions themselves because he objected to only one
condition, and that objection was sustained. See United States v. Flores, 929 F.3d 443,
448–49 (7th Cir. 2019).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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