USA v. Booker Sewell

Filing

Filed Nonprecedential Disposition PER CURIAM. For these reasons, we grant counsel s motion to withdraw and dismiss the appeal. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6888005-2] [6912548-1] [6912548] [17-3108]

Case: 17-3108

Document: 24
Filed: 03/22/2018
Pages: 2
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted February 26, 2018
Decided March 22, 2018
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 17-3108
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.

v.
BOOKER T. SEWELL,
Defendant-Appellant.

No. 1:11-CR-35
Theresa L. Springmann,
Chief Judge.
ORDER

Booker T. Sewell was convicted of being a felon in possession of a firearm (18
U.S.C. § 922(g)(1)) and of maintaining a place for the purpose of distributing and using
a Schedule II controlled substance (21 U.S.C. § 856(a)(1)). The district court sentenced
him to concurrent imprisonment terms of 360 and 240 months. He appealed his
conviction and sentence. We affirmed the district court’s rulings on the four issues
raised by Sewell in that appeal but remanded the case to the district court for
reconsideration of Sewell’s conditions of supervised release given our then-recent
decision in United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). On remand, the
district court imposed the same prison sentence: concurrent terms of 360 and 240

Case: 17-3108

Document: 24

Filed: 03/22/2018

Pages: 2

No. 17-3108

Page 2

months. Sewell again appealed. But before Sewell’s second appeal was heard by this
court, we remanded the case for resentencing in light of Johnson v. United States, 135 S.
Ct. 2551 (2015), pursuant to the parties’ joint motion. On that second remand, the
district court sentenced Sewell to consecutive imprisonment terms of 120 and 129
months.
Sewell then filed a notice of appeal, but his appointed counsel asserts that this
appeal—his third—is frivolous and seeks to withdraw under Anders v. California, 386
U.S. 738 (1967). Sewell’s counsel submitted an Anders brief that explains the nature of
the case and addresses the issues that an appeal like this one might involve. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Sewell filed a response. Because the
analysis in counsel’s brief appears thorough, “we limit our review to the subjects that
counsel has discussed, plus any additional issues that the defendant, disagreeing with
counsel, believes have merit.” Id. (citing United States v. Wagner, 103 F.3d 551, 553 (7th
Cir. 1996)).
On the last remand, the district court was given one narrow task by agreement of
the parties: to resentence Sewell in light of Johnson. So Sewell’s arguments in his
response brief about Johnson and his drug-quantity enhancement are meritless, as they
have already been raised and dealt with in this case. See Key v. Sullivan, 925 F.2d 1056,
1060 (7th Cir. 1991) (explaining the law-of-the-case doctrine).
Only the issues newly arising from Sewell’s most recent resentencing are within
the scope of this appeal. See United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (“A
party cannot use the accident of a remand to raise in a second appeal an issue that he
could just as well have raised in the first appeal … .”). Accordingly, counsel explains
that there are only three possible issues properly before this court in this appeal. We
agree with counsel’s analysis—and disposal—of the merits of each of these issues.
Sewell’s response does not convince us otherwise.
For these reasons, we grant counsel’s motion to withdraw and dismiss the
appeal.