Commentary: Court finds argument frivolous.

• Author: Ziemer, David

Byline: David Ziemer

When facing an issue of first impression in the Seventh Circuit, an attorney should be able to make an argument that has been accepted by another circuit, without any worry that the argument may be found frivolous.

However, a Jan. 16 Seventh Circuit opinion demonstrates that is not necessarily the case. Six defendants were convicted of drug charges under a 14-defendant indictment in Illinois, and wanted to appeal their sentences. However, only two of the defense attorneys filed appeals.

The other four filed no-merit briefs and moved to withdraw as counsel.

One of the defendants, Montrell McSwain, responded to his attorney's no-merit brief.

All four had received five-year sentences, pursuant to 18 U.S.C. 924(c)(1)(A), consecutive to their underlying drug conspiracy sentences.

The statute requires a mandatory consecutive sentence for a defendant convicted of possessing a gun in furtherance of a drug crime.

However, it is limited by the following language: Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law...

McSwain argued that the statute precludes a sentencing court from imposing an additional term of imprisonment, because he was already subject to a 20-year mandatory minimum on the drug charge -- a sentence greater than the five-year minimum on the gun charge.

This argument was recently adopted by the Second Circuit in U.S. v. Whitely, 529 F.3d 150, 158 (2d Cir. 2008).

Five other circuits have rejected the argument, and it was an issue of first impression in the Seventh Circuit.

Despite the Second Circuit's opinion, the court held McSwain's argument was frivolous, and accordingly, granted the four attorneys' motions to withdraw as counsel.

The court agreed with the majority of the circuits to consider the issue, holding that the except clause does not apply to the drug trafficking crimes underlying a sec. 924 conviction.

The court wrote, Although the issue is one of first impression in this circuit, that does not automatically lead to the conclusion that it is nonfrivolous and cannot be resolved in an Anders posture without briefing.

The more natural reading of the statute, the court found, is that a defendant convicted under sec. 924(c)(1) shall be sentenced to a term of imprisonment set forth in sec. 924(c)(1)(A) unless subsections (c)(1)(B) or (c)(1)(C), or another penalty provision elsewhere in the United States Code, requires a higher...