United States of America v. Mario A. Foster

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2023
Decided February 17, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-2542
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO A. FOSTER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
3:21-CR-30137-DWD
David W. Dugan,
Judge.
O R D E R
Mario Foster pleaded guilty to possessing drugs with the intent to distribute and
was sentenced to 156 months’ imprisonment and three years of supervised release.
Foster 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 raises potential issues that we would expect an appeal like
this to involve. Because the analysis appears thorough, and Foster has not responded to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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the motion with additional arguments, see C IR . R. 51(b), we limit our review to the
subjects counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
On July 22, 2021, law enforcement officers stopped Foster’s pickup truck because
it had been linked to a parental abduction. Foster and his three-month-old infant were
the only occupants of the truck. When the officers lifted the infant from the car seat on
the front passenger seat, they discovered on the seat two clear bags that were later
determined to contain about 10 grams of fentanyl and 13 grams of cocaine base. Foster
later stipulated that “the crack cocaine and fentanyl exceeded the amount a drug user
would purchase for individual use” and was consistent with what “would be resold to
other users.” Without an agreement with the government, Foster pleaded guilty to two
counts of possessing with intent to distribute a controlled substance: one count for the
cocaine base and one count for the fentanyl. 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
Using the total converted drug weight of the two drugs, see U.S.S.G.
§ 2D1.1(c)(10), the presentence investigation report grouped Foster’s two offenses and
calculated a base offense level of 20 and an initial criminal history category of V under
§§ 3D1.2(d) and 4A1.1 of the Sentencing Guidelines. Then the PSR determined that the
career offender guideline applied instead, because Foster had three prior convictions for
felony controlled-substance offenses. See U.S.S.G. § 4B1.1. This increased both the
offense level and criminal history category, and the guideline range after a three-level
reduction for acceptance of responsibility was 151 to 188 months’ imprisonment. See id.
§§ 4B1.1, 5A.
Neither party objected to the PSR’s calculations and findings, but at the
sentencing hearing, they argued for very different sentences. Foster argued that even
though he technically qualified as a career offender, he had no prior convictions for
violent crimes and is not the type of recidivist to whom the career offender guideline
was intended to apply. Foster also pointed out that over half of career offenders are
sentenced outside the recommended range, with the vast majority receiving below-
guideline sentences. Thus, Foster urged the court to impose a sentence within the
unenhanced guidelines range of 46 to 57 months. Conversely, the government argued
that Foster should be sentenced to 188 months’ imprisonment, at the top of the
guidelines range with the career offender enhancement. The government noted that the
career offender guideline requires only two qualifying convictions, and Foster had
three. Further, it said, fentanyl is extremely dangerous, Foster placed the drugs in close
proximity to his infant, and his criminal history indicated a lack of respect for the law.

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No. 22-2542 Page 3
The court commended Foster’s detailed arguments but determined that the
sentencing range applying the career offender enhancement was appropriate. Before
imposing the sentence, the court assured Foster that it was not considering the record’s
untested references to parental abduction. It also noted mitigating circumstances such
as Foster’s family and community support. But the court highlighted several
aggravating factors such as the danger of fentanyl—particularly around a small child—
Foster’s extensive criminal history, and the proximity of the instant offense—two
weeks—to Foster’s discharge from state parole. The court imposed a within-guideless
sentence of 156 months’ imprisonment and three years of supervised release.
Counsel first represents that he discussed with Foster the risks and benefits of
challenging his plea on appeal and reports that Foster wishes to contest only his
sentence. Counsel therefore properly omits any detailed discussion of whether the plea
was valid. United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). Nevertheless, counsel considers arguing that
possessing two controlled substances at one time is a single offense and not two
separate offenses. But because Foster did not raise this argument in the district court, it
is forfeited, United States v. Lockett, 859 F.3d 425, 427–28 (7th Cir. 2017), and we agree
with counsel that under our precedent—and that of many sister circuits—simultaneous
possession of two drugs is two crimes. See id. at 428–29.
Counsel also properly concludes that Foster could not raise a nonfrivolous
challenge to the length of his sentence. Counsel first opines that the district court
correctly calculated a sentencing range of 151 to 188 months of imprisonment. The court
agreed with the government that Foster was a career offender. U.S.S.G. § 4B1.1. Based
on that finding, the court raised the offense level to 32 before reducing it by 3 levels for
acceptance of responsibility, U.S.S.G. § 3E1.1, and it increased the criminal history
category from V to VI. Counsel considers whether he could argue that Foster should not
have received the career offender enhancement because the state statutes under which
he was convicted criminalize more conduct than the comparable federal laws. But
counsel correctly recognizes that we have rejected this argument multiple times and
that asking us to reconsider it would be frivolous. See, e.g., United States v. Wallace,
991 F.3d 810, 817 & n.3 (7th Cir. 2021), cert. denied, 142 S. Ct. 362 (2021); United States v.
Ruth, 966 F.3d 642, 654 (7th Cir. 2020), cert. denied, 141 S. Ct. 1239 (2021).
Next, counsel considers arguing that the sentence was substantively
unreasonable but concludes that Foster could not possibly rebut the presumptive
reasonableness of a sentence within a properly calculated guidelines range. United States

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No. 22-2542 Page 4
v. Major, 33 F.4th 370, 384–85 (7th Cir. 2022). Counsel is correct. In applying the
sentencing factors under 18 U.S.C. § 3553(a), the district court carefully considered
mitigation arguments but emphasized the seriousness of the offense and highlighted
the need for deterrence. An argument that the court abused its discretion in imposing a
sentence near the bottom of the guidelines range would be frivolous.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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