United States of America v. Kenneth L. Cooper, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2021
Decided May 19, 2021
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 19‐1890
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH L. COOPER, JR.,
Defendant‐Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:17‐10052‐001
James E. Shadid,
Judge.
O R D E R
A jury found Kenneth Cooper guilty of possession with intent to distribute crack
cocaine and marijuana, 21 U.S.C. § 841(a)(1), and of using a firearm in furtherance of the
drug trafficking offense. 18 U.S.C. § 924(c)(1)(A). He was sentenced to statutory‐
minimum sentences of concurrent 60‐month terms for the drug counts and a
consecutive 60‐month sentence for the firearms offense, plus four years’ supervised
release (concurrent terms of four, two, and four years, respectively, for Counts I, II, and
III). Cooper filed a notice of appeal, but his appointed counsel asserts that the appeal is
frivolous and moves to withdraw. Anders v. California, 386 U.S. 738, 744 (1967). Cooper
did not respond to counsel’s motion. See C IR . R. 51(b). Because counsel’s brief appears
thorough—it explains the nature of the case and the issues an appeal of this kind might
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19‐1890 Page 2
be expected to involve—we limit our review to the subjects that counsel discusses.
United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel begins by considering potential challenges to Cooper’s conviction,
including whether Cooper could argue that there was insufficient evidence to support
the verdict. Although Cooper’s motions for a directed verdict preserved a challenge to
the sufficiency of the evidence, he would be unable to meet the exacting appellate
standard, under which we view the evidence in the light most favorable to the
prosecution. See United States v. Hopper, 934 F.3d 740, 754 (7th Cir. 2019). We agree with
counsel that the argument would be futile given the “enormous” weight of the physical,
circumstantial, and eyewitness evidence against Cooper—including video evidence
showing drugs, drug paraphernalia, and guns littered throughout his home; Cooper’s
admission to owning one of the guns; the sheer quantity of drugs (1.6 kilograms of
marijuana and 37.5 grams of crack cocaine) in his possession; and testimony from police
officers who watched him sell drugs to a confidential informant. Cooper’s defense that
the marijuana was for his personal consumption, and his disowning of the crack cocaine
found in his possession, did not require the jurors to reject the ample evidence
permitting them to find that Cooper intended to sell the marijuana and possessed the
crack with the same intent. See United States v. Bacon, 991 F.3d 835, 842 (7th Cir. 2021).
Counsel also explores challenges to potential trial errors that could undermine
the fairness of the proceedings and correctly concludes that he could not show any such
error. Cooper did not move to suppress evidence from the search, file any motions
in limine, challenge the admission of any evidence at trial, or object to the prosecution’s
opening or closing statements, so he would have to show plain error in any appellate
challenge. See United States v. Thomas, 933 F.3d 685, 690 (7th Cir. 2019). Like counsel, we
conclude that he would be unable to do so. We also agree with counsel that it would be
frivolous to challenge the composition of the jury or the jury instructions. During jury
selection, Cooper struck two prospective jurors, one of whom was a relative of an
officer involved in the case. United States v. Hill, 552 F.3d 541, 548–49 (7th Cir. 2008) (no
plain error in jury construction where plaintiff had opportunity to strike, and did strike,
potential jurors). And the court instructed the jury before deliberations using pattern
instructions to which Cooper affirmatively agreed, so any challenge to the instructions
would be waived. See United States v. Friedman, 971 F.3d 700, 711 (7th Cir. 2020) (internal
citation omitted).
Counsel also explains that Cooper could not call the verdict into question based
on his retained defense attorney’s conflict of interest. Although the attorney previously

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No. 19‐1890 Page 3
represented a police officer who was a witness in Cooper’s case, Cooper expressly
waived any potential conflict after the judge questioned him on the record. Moreover,
the representation was proper because Cooper consented to it, see United States v.
Turner, 594 F.3d 946, 953 (7th Cir. 2010), and the attorney had no current conflict. Ill. R.
Prof. Conduct 1.7(a)(1)‐(2). We therefore agree with counsel that raising this issue on
direct appeal would be pointless.
Counsel next turns to possible challenges to Cooper’s sentence and rejects them
all as frivolous. First, Cooper would be unable to argue that his sentence was unlawful.
His 60‐month sentence on the drug convictions is well within the statutory maximum of
life imprisonment, 18 U.S.C. §§ 841(b)(1)(B)(iii), (viii), and his 60‐month sentence for the
firearms offense is at the statutory minimum under § 924(c)(1)(A). Cooper’s four‐year
term of supervised release is also at the statutory minimum. Id. § 841(b)(1)(D). And,
despite Cooper’s request to make the sentence for the § 924(c) count concurrent, the
court correctly determined that the statute requires that sentence to run consecutively.
See 18 U.S.C. § 924(c)(1)(D)(ii). The court also correctly declined to credit time spent on
bond toward Cooper’s sentence. See 18 U.S.C. § 3585(B); Reno v. Koray, 515 U.S. 50, 58
(1995) (limiting credit to time spent awaiting trial in a “penal or correctional facility”).
We agree that it would be frivolous to challenge the lawfulness of the sentence.
Second, counsel concludes that Cooper could not demonstrate any procedural
error at the sentencing hearing. He could not contest the calculation of the guidelines
range for his offenses: With a criminal history category of I and a total offense level of
26, the Sentencing Guidelines advise 63 to 78 months’ imprisonment for the drug
convictions, a range the court adopted. See U.S.S.G. Ch. 5, pt. A (Sentencing Table).
Cooper did not object to the range, which includes a two‐level enhancement for
maintaining a drug premises, U.S.S.G. § 2D1.1(b)(12), and considering the extensive
evidence found at his home, Cooper would be unable to show that the enhancement
was applied in error.
Counsel discerns no other procedural error such as a failure to consider the
sentencing factors under 18 U.S.C. § 3553(a) or a substantial mitigating argument.
See Gall v. United States, 552 U.S. 38, 51 (2007). Though the court did not address the
factors in “checklist fashion,” it was not required to do so. See United States v. Shannon,
518 F.3d 494, 496 (7th Cir. 2008). It acknowledged its discretion, then gave an “adequate
statement” of the factors that weighed into its sentencing decision. Id. Specifically, the
court acknowledged the strong showing of support Cooper’s family and friends made
by appearing in court, offering character testimony at sentencing, and submitting letters

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No. 19‐1890 Page 4
on his behalf. The court explained, however, that it placed special weight on protecting
the public from gun violence and deterring Cooper and others from drug crimes.
Counsel is therefore correct that it would be frivolous to assert a procedural error.
Third, counsel rightly concludes that Cooper could not challenge the sentence as
substantively unreasonable under 18 U.S.C. § 3553(a). The court imposed a within‐
guidelines sentence on the § 924(c) count and a below‐guidelines, statutory‐minimum
sentence for the drug counts. The sentences are entitled to a presumption of
reasonableness on appeal. United States v. De La Torre, 940 F.3d 938, 953 (7th Cir. 2019).
In light of the court’s explanation for the sentence, and the precept that “[i]t is not our
job to reweigh the § 3553(a) factors,” we agree that Cooper could not demonstrate an
abuse of discretion with respect to the sentence. See id. at 954. The same is true of the
concurrent terms of supervised release, which are also within the guidelines ranges and
therefore presumptively reasonable. United States v. Jones, 774 F.3d 399, 404 (7th Cir.
2014). In any event, by saying he had no objections to either the duration or the
conditions of supervised release, Cooper waived any appellate challenges.
See United States v. Flores, 929 F.3d 443, 449–50 (7th Cir. 2014).
We GRANT the motion to withdraw, and DISMISS the appeal.

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