United States of America v. Kash Lee Kelly

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2022
Decided May 17, 2022
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1289
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KASH LEE KELLY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
Hammond Division.
No. 2:15CR72-037
Philip P. Simon,
Judge.
O R D E R
Kash Kelly pleaded guilty to conspiracy to distribute cocaine and marijuana. See
21 U.S.C. §§ 841(b)(1)(B), 846. Because of his extensive cooperation with law
enforcement, Kelly was sentenced to four years’ imprisonment and three years’
supervised release, below the statutory minimum for his charge. See 18 U.S.C. § 3553(e).
Although his plea agreement contains a broad appeal waiver, Kelly filed a notice of
appeal. His appointed counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s brief explains the
nature of the case and addresses potential issues that an appeal of this kind might
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-1289 Page 2
involve. Kelly has not responded with additional arguments for our consideration. See
C IR . R. 51(b). Because counsel’s analysis appears thorough, we limit our review to the
issues he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Kelly, a former member of the Latin Kings gang, continued selling drugs to his
former associates after he left the gang. He was charged with conspiracy to distribute
marijuana and cocaine in 2017 and pleaded guilty to the conspiracy charge. See 21
U.S.C. § 846. After his arrest, Kelly cooperated extensively with federal law
enforcement, providing detailed information about the Latin Kings and agreeing to
testify at the racketeering trial of a prominent member. As a result, Kelly spent most of
the period between his 2017 plea hearing and his February 2021 sentencing hearing out
on bond, and the government moved for a sentence below the statutory minimum
based on his substantial assistance. See 18 U.S.C. § 3553(e). Before the sentencing
hearing, however, Kelly was rearrested; posts on social media revealed his presence
inside the United States Capitol during riots on January 6, 2021. So far Kelly has been
charged with two federal misdemeanors for his actions that day.
The presentence investigation report (PSR) calculated a range of 121 to 151
months’ imprisonment under the Sentencing Guidelines, based on a total offense level
of 30 and criminal history category of III. This included a three-level reduction for
acceptance of responsibility. The government moved for an additional downward
variance of four levels because of Kelly’s substantial assistance in prosecuting members
of the Latin Kings, resulting in a guidelines range of 57 to 71 months imprisonment. See
id. § 3553(e); U.S.S.G. § 5k1.1. At the sentencing hearing—and over Kelly’s objection—
the district judge rejected the reduction for acceptance of responsibility because of
Kelly’s alleged criminal activity at the Capitol. The judge adopted a guidelines range of
168 to 210 months but then granted the government’s motion for a downward variance
for substantial assistance. He sentenced Kelly to 48 months’ imprisonment, below the
statutory minimum of 60 months.
Counsel represents in his brief that he consulted with Kelly and confirmed that
he does not wish to withdraw his guilty plea, and so he properly avoids discussion of
arguments about the plea’s validity. 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).
Because Kelly does not challenge the agreement, he cannot escape the appeal
waiver, which stands or falls with the plea agreement. And we agree with counsel that
the waiver is enforceable unless some exception applies. See United States v. Nulf, 978

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No. 21-1289 Page 3
F.3d 504, 506 (7th Cir. 2020). Counsel appropriately rejects arguments that any
exception applies. See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016).
Kelly’s sentence is well below the statutory maximum. And there is no evidence that the
judge relied on unconstitutional factors—such as Kelly’s First Amendment rights to
expression or association—in sentencing him. See United States v. Schmidt, 930 F.3d 858,
862 (7th Cir. 2019). Rather, the district judge properly considered Kelly’s allegedly
criminal activity at the Capitol in determining that he had not renounced a criminal
lifestyle. Id. at 864.
With no applicable exception to enforceability, we agree with counsel that the
appeal waiver precludes any challenge to the sentence. In relevant part, Kelly
“expressly waived [his] right to appeal . . . all components of [his] sentence or the
manner in which [his] . . . sentence was determined or imposed.” In any event, counsel
also concludes, correctly, that because Kelly’s sentence is below the statutory
mandatory minimum, we would lack jurisdiction to review it. See 18 U.S.C. § 3742(a);
United States v. Spann, 682 F.3d 565, 566 (7th Cir. 2012).
We therefore GRANT the motion to withdraw and DISMISS the appeal.

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