United States of America v. Catrina A. Nelson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 14, 2013
Decided January 15, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11-3254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CATRINA A. NELSON,
Defendant-Appellant.
Appeal from the
United States District Court for the
Eastern District of Wisconsin.
No. 09-CR-123
Charles N. Clevert, Jr.,
Judge.
O R D E R
Catrina Nelson pleaded guilty to conspiring to distribute one kilogram or more of
heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. The district court calculated a guidelines
range of 70 to 87 months, and the government moved for a sentence reduction on the basis
of Nelson’s substantial assistance in its prosecution of several other distributors.
See U.S.S.G. § 5K1.1. The district court sentenced Nelson to 48 months’ imprisonment.
Nelson filed a notice of appeal, but her appointed attorney asserts that this appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Nelson
has not responded to counsel’s submission. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 11-3254 Page 2
Counsel advises us that Nelson does not wish to challenge her guilty plea, so
counsel’s brief properly omits any discussion about the plea colloquy or the voluntariness
of the 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 first acknowledges that the district court used the wrong edition of the
sentencing guidelines in calculating Nelson’s imprisonment range but properly concludes
that any challenge on that basis would be frivolous. Although the court used the 2009
manual when it should have used the 2010 edition, which was in effect when Nelson was
sentenced, see 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Demaree, 459 F.3d 791, 792 (7th
Cir. 2006), the error was harmless because the relevant provisions were not amended by the
2010 guidelines, see United States v. Vasquez, 673 F.3d 680, 685 n.1 (7th Cir. 2012).
Next counsel considers whether Nelson could argue that the district court erred by
not applying a two-level downward adjustment for her minor role in the conspiracy.
See U.S.S.G. § 3B1.2(b). Nelson did not raise the issue before the district court, and so we
would review for plain error. United States v. Thi, 692 F.3d 571, 573–74 (7th Cir. 2012). To
qualify for a reduction under § 3B1.2(b), Nelson must be “substantially less culpable than
the average participant” in the scheme. U.S.S.G. § 3B1.2 cmt. n.3(A); see Thi, 692 F.3d at 574;
United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011). But as counsel points out, the
district court adopted the PSR, which concluded that Nelson played an “integral” role in
the conspiracy, and at sentencing emphasized Nelson’s multiple trips out of town to
purchase heroin, help in cutting and repackaging the heroin, and role in directly
distributing it to customers. We agree with counsel that the district court did not plainly err
by not granting Nelson the reduction.
Finally, counsel concludes that any challenge to the reasonableness of Nelson’s
sentence would be frivolous. Nelson’s below-range sentence is presumed reasonable,
see United States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009); United States v. Liddell, 543 F.3d
877, 885 (7th Cir. 2008), and we agree with counsel that the record presents no basis to set
that presumption aside. The district court thoroughly considered the appropriate
sentencing factors, noting on the one hand Nelson’s lack of criminal history, medical issues,
and relationship with her young daughter, but on the other hand the seriousness of the
offense and her positive drug tests while on release. See 18 U.S.C. § 3553(a)(1), (a)(2)(A).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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