United States of America v. Don Ak James, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 31, 2024
Decided July 21, 2025
Before
DIANE S. SYKES, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-2195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DON AK JAMES, JR.,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 1:22-cr-128
William C. Griesbach,
Judge.
O R D E R
A jury found Don AK James, Jr., and his brother, Frederick Brewer, guilty of
conspiracy to distribute and to possess with the intent to distribute fentanyl. The jury also
found them both guilty of possessing fentanyl with the intent to distribute, and James
specifically of possessing fentanyl with intent to distribute on two other dates. James
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 “adequately
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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explains the nature of the case and discusses potential issues that an appeal of this kind
might be expected to involve.” United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Because counsel’s analysis appears thorough, we limit our review to the subjects that
counsel discusses and the additional arguments that James proposes in his responses
under Circuit Rule 51(b). See id. For the reasons discussed below, we grant the motion
and dismiss the appeal.
During the course of investigating the sales of pills (that appeared to be Percocet
pills) laced with fentanyl, the Brown County Drug Task Force uncovered evidence that
James and Brewer conspired to distribute and possess with intent to distribute high
volumes of such pills from at least December 2021 to February 2022. The evidence showed
that James bought large quantities of the pills and, with the help of Brewer, sold the pills
from their shared residence. James was charged with four counts related to his fentanyl
dealings: one for conspiracy to distribute and possess with the intent to distribute (Count
One), 21 U.S.C. §§ 846 and 841(b)(1)(A)(vi); one for possession with the intent to distribute
(Count Two), id. § 841(a)(1) and (b)(1)(A)(vi) and 18 U.S.C. § 2(a); and two for possession
with the intent to distribute on two other dates, February 21 and June 14, 2022 (Counts
Six and Seven), 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(1)(B)(vi).
Ahead of trial, James filed a motion for leave to file an untimely motion to suppress
evidence from a February 21, 2022, traffic stop, during which officers found James with a
stack of cash and a blue pill in plain view. The district court denied the motion, noting
both that the motion was late and that, in any event, the officers had reasonable suspicion
to stop James’s car.
James also filed motions in limine seeking to exclude certain evidence from trial.
Relevant here, the district court denied James’s request to exclude evidence that he had
resisted or otherwise obstructed his arrest. The court found the evidence relevant to prove
whether James knew that the pills were controlled substances and noted that, under
Federal Rule of Evidence 403, the probative value of the evidence outweighed its risk of
prejudice. Finally, James moved to exclude three photographs that depicted him holding
a large stack of cash. The district court initially ruled that the photographs could all come
in. But the district court later reconsidered and barred the introduction of one of the
photographs because it contained an image of James’s child.
During the three-day jury trial, the government presented physical evidence and
testimony from various witnesses to show that James had possessed pills containing
fentanyl with the intent to distribute them, actually distributed the pills, and conspired
with Brewer to do so. The government also called a digital forensics expert, Breanne

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Kimball, to discuss how data was extracted from James’s phone. James objected to
qualifying Kimball as an expert and argued that she should not be able to present lay
opinion testimony, but the district court overruled the objection. The extracted phone
data included a text conversation between James and a supplier negotiating a drug
transaction, messages between James and Brewer suggesting that they were working to
distribute drugs together, as well as photos and videos of blue pills consistent with those
recovered from James.
At the close of the government’s case, James moved for a directed verdict under
Federal Rule of Criminal Procedure 29, arguing that the government’s evidence was
insufficient to convict him on the various counts. Concluding that the evidence was
sufficient for a reasonable jury to find in favor of the government, the district court denied
the motion. The defense exercised its right not to present any evidence.
In the end, the jury found James guilty on all charges. In doing so, the jury also
found that the government had proven beyond a reasonable doubt that James had
conspired and possessed with intent to distribute at least 400 grams of a mixture and
substance containing fentanyl. By contrast, the jury found that the government had failed
to prove that Brewer’s crimes involved at least 40 grams of the same.
James renewed his Rule 29 motion for judgment of acquittal. The district court
summarily denied the motion as to his possession charges (Counts Two, Six, and Seven)
and took the remainder of the motion under advisement. Later, the district court issued
a written order denying the motion as to the conspiracy charge (Count One), reasoning
that the jury’s finding of guilt had sufficient support in the record.
Ahead of sentencing, the probation office prepared a presentence investigation
report (PSR) recounting James’s offense conduct and criminal history. The PSR calculated
a guidelines range of 360 months to life in prison (based on a total offense level of 40 and
a criminal history category of III). James objected to the probation office’s calculation of
his base offense level and its application of certain enhancements.
At the sentencing hearing, the district court overruled each of James’s objections
and adopted the guidelines range recommended in the PSR. Then, after weighing the
sentencing factors under 18 U.S.C. § 3553(a), the district court imposed a sentence of 180
months’ imprisonment to be followed by 10 years of supervised release. In doing so, the
court explained that the sentence was “half the low end of the guidelines,” and stressed
that the sentence was based on the § 3553(a) factors, rather than the contested
enhancements.

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In her Anders brief, counsel first considers but rejects challenging the district
court’s evidentiary rulings. Specifically, counsel concludes that any argument that the
district court erred in denying James’s belated request to file a motion to suppress
evidence or in allowing Kimball to testify about the phone data extraction would be
frivolous. We agree.
First, even if the district court had erred by denying James’s request to file an
untimely motion to suppress, the motion itself would have failed on the merits, rendering
any alleged error harmless. See United States v. Lee, 618 F.3d 667, 673–64 (7th Cir. 2010)
(court’s denial of motion to suppress, even if erroneous, was harmless because the court
“would not have reached a different result but for the alleged error”). Moreover, James’s
counsel at the time did not dispute that the officers had reasonable suspicion for the traffic
stop and further agreed that the smell of marijuana the officers detected when James
exited the vehicle supplied probable cause for the search.
As for the expert testimony regarding the data on James’s phone, “the district court
has broad discretion in determining the competency of a witness as an expert.” United
States v. Lee, 502 F.3d 691, 698 (7th Cir. 2007). Given Kimball’s technical training in
information technology and computer science, her certification related to the extraction
software, and her years of experience extracting information from similar phones, the
district court did not abuse its discretion by allowing her to testify about the phone data
extraction at trial.
We also agree with counsel that any argument contesting the sufficiency of the
evidence would be frivolous. Such challenges face “a nearly insurmountable burden.”
United States v. Hofschulz, 105 F.4th 923, 932 (7th Cir. 2024) (internal quotation marks
omitted). This is because we reverse a jury’s verdict only if, after viewing the evidence in
the light most favorable to the government, we determine that “the record contains no
evidence from which a reasonable juror could have found the defendant guilty.” Id. at
931–32 (quoting United States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009)).
To prove James’s possession counts (Counts Six and Seven), the government
presented testimony by an arresting officer who observed James attempting to swallow
a golf-ball sized bag of pills that later tested positive for fentanyl. The same officer then
testified that he discovered a bag of similar pills (again that tested positive for fentanyl)
hidden in James’s underwear during a strip search a few months later.
As for the possession count against James and Brewer (Count Two), the jury was
presented with evidence of James’s trip to Arizona to procure thousands of pills. The jury

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also saw text messages sent by James indicating that he was trying to sell the pills
wholesale. Such evidence supported the jury’s finding that James possessed a large
number of pills, he knew the pills were fentanyl, and he intended to sell them.
Turning lastly to the conspiracy count (Count One), the government presented
evidence that James owned a car registered at a residential address he shared with
Brewer, James advised Brewer on how to hide and dispose of drugs in the event of arrest,
and James and Brewer discussed sales to customers through text messages. Furthermore,
a reasonable jury could find that James and Brewer shared proceeds from the sales, given
that bills Brewer received from the sale of fentanyl pills to a confidential informant were
later discovered in the bond money posted for James which came from James’s own safe.
Furthermore, Brewer’s text message to James on January 15, 2022, asking for more
inventory after presumably having exhausted his supply (“Need 50 at least”) suggested
that the two had engaged in similar transactions. Thus, viewed in light most favorable to
the government, the evidence was sufficient for a reasonable jury to conclude that James
knowingly agreed to distribute drugs with Brewer. See United States v. Hidalgo-Sanchez,
29 F.4th 915, 924–25 (7th Cir. 2022).
Counsel next considers whether James could bring a nonfrivolous challenge
against the procedural reasonableness of the district court’s sentencing decision. The
district court correctly noted that the Guidelines allowed relevant conduct to serve as a
basis for determining the base offense level, see U.S. S ENT’ G GUIDELINES M ANUAL § 1B1.3,
and appropriately adopted the base offense level of 32 recommended in the PSR based
on the government’s evidence that James had trafficked at least 1.2 to 4 kg of fentanyl. Id.
§ 2D1.1(c)(4). The district court also properly applied the four-level enhancement for
knowingly misrepresenting the fentanyl as oxycodone, id. § 2D1.1(b)(13), as well as the
two-level enhancement for being an organizer or leader in the conspiracy. Id. § 3B1.1(c).
The government showed not only that Brewer was a distributor for James, but also that
James advised Brewer on how to evade detection and dispose of evidence. Ultimately,
James cannot make a nonfrivolous argument that the district court misapplied the
Sentencing Guidelines or committed any procedural error. See 18 U.S.C. § 3742; United
States v. Booker, 543 U.S. 220, 260–61 (2005).
What is more, the district court explained that it would have imposed the same
below-guidelines sentence even if it had concluded that the sentencing enhancements
were inapplicable. Thus, even if the district court had erred in rebuffing James’s
challenges to the guideline range, any such error would be harmless. See United States v.
White, 883 F.3d 983, 987 (7th Cir. 2018).

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We also agree with counsel that any challenge to the substantive reasonableness
of James’s sentence would be frivolous. Here, the district court noted its consideration of
the nature and circumstances of the offense; the history and character of the defendant;
and the need for the sentence to impose just punishment, provide deterrence, and protect
the public from further crimes of the defendant, while offering opportunities for
rehabilitation. See 18 U.S.C. § 3553(a). The court then determined that James should
receive a sentence that was half of the low end of the guidelines range. Considering that
there exists “a nearly irrebuttable presumption that a below-range sentence is
reasonable,” United States v. Miller, 829 F.3d 519, 527 (7th Cir. 2016), James cannot raise a
nonfrivolous argument on this record that his sentence was not.
Counsel finally evaluates a possible argument that James’s trial counsel was
ineffective. She correctly concludes that pressing such an argument would be imprudent
on direct appeal and is better suited for collateral review. See United States v. Flores, 739
F.3d 337, 341 (7th Cir. 2014).
In his Rule 51(b) response, James proposes an additional ground for appeal. He
argues that the district court erred in admitting the two photographs of James holding a
large stack of cash because they were irrelevant and highly prejudicial. We review a
district court’s evidentiary decision for an abuse of discretion and find such abuse only
when “no reasonable person could take the view adopted by the trial court.” United States
v. Guzman-Cordoba, 988 F.3d 391, 399 (7th Cir. 2021) (internal quotation marks omitted).
When considering James’s objection to the photographs, the district court
explained that they were relevant to the charges and that any risk of prejudice was
outweighed by their probative value. The district court then reconsidered as to one of the
photographs, reasoning that a jury could be unduly inflamed by the presence of a child
in the picture. These determinations were well within the district court’s discretion.
For these reasons, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.

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