Commentary: Court finds argument frivolous.

• Date: 26 January 2009
• Author: Ziemer, David
• Published date: 26 January 2009
• 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...