                              NONPRECEDENTIAL DISPOSITION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 September 22, 2009∗
                                      Decided September 29, 2009


                                               Before

                                FRANK H. EASTERBROOK, Chief Judge

                                JOHN L. C OFFEY, Circuit Judge

                                MICHAEL S. KANNE, Circuit Judge


No. 09-1391                                                      Appeal from the United
                                                                 States District Court for the
UNITED STATES OF AMERICA,                                        Northern District of Indiana,
      Plaintiff-Appellee,                                        Hammond Division.

                v.                                               No. 2:97-CR-18
                                                                 Rudy Lozano, Judge.
DONTE T. ROBERTS,
     Defendant-Appellant.


                                                Order

       After the Sentencing Commission lowered the guideline ranges for crack
cocaine, Donte Roberts filed a motion under 18 U.S.C. §3582(c), asking the judge to
reduce his sentence. The judge found Roberts eligible but declined to reduce the
sentence. The judge observed that Roberts has been formally disciplined more than 20
times for violations of prison rules, that some of his prison misconduct is serious, and
that the frequency of violations has not decreased with time. The judge deemed
Roberts a poor candidate for accelerated release.


∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 09-1391                                                                  Page 2



        Roberts filed a notice of appeal. His lawyer has submitted an Anders brief
explaining why the appeal is frivolous. Roberts was invited to respond, see Circuit Rule
51, and has not done so. There are only three potential appellate arguments: that
reduction is mandatory; that the judge misunderstood Roberts’s intra-prison record; or
that failure to reduce the sentence was an abuse of discretion. The statute shows that
the district judge is not required to reduce a sentence just because the range has gone
down, so the first argument would be frivolous. Roberts has never argued that the
judge misunderstood the number or gravity of his intra-prison transgressions, ruling
out the second line of argument. And given his extensive intra-prison record, it would
be impossible to say that refusing to expedite his release from prison is an abuse of
discretion.

       Roberts argued in the district court that the judge could use §3582(c) to apply
United States v. Booker, 543 U.S. 220 (2005), or Kimbrough v. United States, 552 U.S. 85
(2007), retroactively. The judge properly rejected that contention. See United States v.
Cunningham, 554 F.3d 703 (7th Cir. 2009).

      We agree with counsel’s assessment that the appeal is frivolous. Counsel’s
motion to withdraw is granted, and the appeal is dismissed.
