United States of America v. Rodney Bernoid Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 16, 2018
Decided March 20, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-2309
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODNEY BERNOID SMITH,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:16-CR-30024-DRH-6
David R. Herndon,
Judge.
O R D E R
Armed with a gun, Rodney Bernoid Smith helped deliver 120 kilograms of
cocaine from Texas to Illinois as part of a drug conspiracy. He pleaded guilty to
possessing cocaine with an intent to distribute it, 21 U.S.C. § 841(a)(1), (b)(1)(a), and
conspiring to distribute cocaine, id. § 846. A presentence investigation report set Smith’s
base offense level at 34, based on 120 kilograms of cocaine that law enforcement
attributed to him, U.S.S.G. § 2D1.1(a)(5), (c). The report adjusted the level up to 36
because he possessed a gun during the crime, id. § 2D1.1(b)(1), and then deducted three
levels because Smith accepted responsibility for his crime, id. § 3E1.1(a), (b). With these
adjustments, the report arrived at an offense level of 33 and a criminal-history score of
one (based on one prior conviction), id. § 4A1.1(c). Adopting that report (to which Smith
did not object), the district court calculated a sentencing guidelines range of 135 to 168
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17-2309 Page 2
months in prison. The court sentenced Smith to a within-guidelines term of 147 months’
imprisonment and 5 years of supervised release.
Smith now appeals, but his appointed attorney has moved to withdraw his
representation under Anders v. California, 386 U.S. 738 (1967). Smith has not responded
to counsel’s motion. See C IR . R. 51(b). Counsel has submitted a brief that explains the
nature of the case and addresses the issues that a case of this kind might be expected to
involve. Because counsel’s brief appears thorough, we limit our review to the potential
issues that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel reports that he consulted with Smith and confirmed that he does not
want to withdraw his guilty plea; thus, counsel rightly refrains from further exploring
whether the plea was knowing and voluntary. 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).
Smith’s attorney first considers whether the district court committed any
procedural errors at sentencing. He first assesses whether the district court erred in
calculating the offense level. See United States v. Young, 863 F.3d 685, 688 (7th Cir. 2017).
Because Smith did not challenge the 120 kilograms of cocaine used to calculate his base
offense level, we would review any appellate challenge to that quantity for plain error.
United States v. Hernandez, 731 F.3d 666, 672 (7th Cir. 2013). But a plain-error challenge
would be pointless because counsel sees nothing in the record that undercuts law
enforcement’s attribution of this drug quantity to him, nor do we. Smith stipulated to
possessing a dangerous weapon during the crime, so his two-level increase for that
possession is insulated from appellate review. Thus, counsel rightly concludes that an
argument challenging the offense level in the guidelines calculation would be pointless.
Counsel next contemplates whether the district judge procedurally erred in
failing to consider any principal arguments in mitigation. See United States v. Armand,
856 F.3d 1142, 1146 (7th Cir. 2017) (acknowledging district court must consider all
nonfrivolous, principal arguments at sentencing). The judge expressly discussed
Smith’s argument about his strong employment history, minimal criminal record, and
his kind, responsible attitude toward family and friends. But in fashioning the sentence,
the district court found it more compelling that Smith carried a gun during the offense
and threatened his girlfriend with a gun while out on bond before pleading guilty. The
district judge adequately addressed the arguments in mitigation, so counsel correctly
concludes that an argument contending otherwise would be frivolous.

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No. 17-2309 Page 3
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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