United States v. Brandon Smith ( 2022 )

NONPRECEDENTIAL DISPOSITION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 October 17, 2022
Decided October 18, 2022
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1453
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 2:19-cr-181-PP
BRANDON I. SMITH, Pamela Pepper,
Defendant-Appellant. Chief Judge.
ORDER
Shortly after being released from state prison in Wisconsin, Brandon Smith
robbed a gas station while brandishing a weapon and also attempted to rob a
convenience store. He later pleaded guilty to Hobbs Act robbery, 18 U.S.C.
§§ 1951(a), 1952; attempted robbery, id. §§ 1951(a), 1952(a); and brandishing a firearm in
relation to a crime of violence, id. § 924(c)(1)(A)(ii). The district court sentenced him to
132 months’ imprisonment and three years’ supervised release. Smith appeals, but his
appointed counsel asserts that the appeal is frivolous and moves to withdraw.
No. 22-1453 Page 2
See Anders v. California, 386 U.S. 738, 744 (1967). Though counsel provided only the
transcript of the change-of-plea hearing, the sentencing transcript is in the record, and
counsel plainly consulted it. Counsel’s analysis appears thorough. And because the
brief explains the nature of the case and addresses the issues that a case of this kind
might be expected to involve, and Smith did not propose others, see CIR. R. 51(b), we
limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
After Smith pleaded guilty to three counts of the indictment, the probation office
submitted a presentence investigation report (PSR) that calculated the sentencing
options. Under the Sentencing Guidelines for the robbery and attempted robbery, a
total offense level of 23 included a five-level increase under U.S.S.G. § 2B3.1(b)(2)(C) for
brandishing a firearm in connection with the attempted robbery and a three-level
reduction under § 3E1.1(a)–(b) for accepting responsibility. Smith’s ten criminal-history
points placed him in Category V. This yielded a guidelines range of 84 to 105 months’
imprisonment for the robbery and attempt; the § 924(c) conviction carried a mandatory
consecutive sentence of at least seven years. 18 U.S.C. § 924(c)(1)(A)(ii), (c)(1)(D)(ii). The
total effective sentencing range was thus 168 to 189 months. Smith did not object to the
calculations in the PSR but argued in his sentencing memorandum that the sentence
should be no longer than 120 months total to achieve parity with a co-defendant and
avoid imposing cumulative or excessive punishment for brandishing the firearm.
At the sentencing hearing, counsel for Smith again confirmed that the guidelines
ranges were calculated accurately. Smith’s counsel argued that Smith was not more
culpable than his co-defendant, so their sentences should be similar, and that Smith’s
acceptance of responsibility was not diminished by having filed a notice of alibi. The
government recommended a sentence of 168 months, arguing that Smith’s involvement
in the robberies was greater than his co-defendant’s and that Smith’s history and
characteristics warranted a higher sentence.
After weighing the sentencing factors under 18 U.S.C. § 3553(a), including
adequate deterrence, the seriousness of the offense, and Smith’s personal and
employment history, the district court imposed a below-guidelines sentence of
59 months for the robberies and a consecutive 84 months for the § 924(c) count. 1 The
1
The sentencing hearing was held before Chief Judge Pamela Pepper. Judge J.P.
Stadtmueller is incorrectly noted as the sentencing judge in the transcript of the
sentencing hearing.
No. 22-1453 Page 3
court then reduced the 59 months to 48 months to account for time Smith spent in state
custody for the same underlying conduct after his federal indictment in October 2019
and before a federal detainer was filed in September 2020. Smith’s prison sentence
totaled 132 months.
The court also adopted the PSR’s calculation of the supervised-release ranges.
The maximum term for each robbery count was three years, see 18 U.S.C. § 3583(b)(2),
and under U.S.C. § 3583(b)(1), the conviction under § 924(c) carried a maximum of five
years. Under 18 U.S.C. § 3624(e), multiple terms of supervision must run concurrently.
The court imposed three concurrent terms of three years each, for a total of three years’
supervision. Smith did not object to the term or conditions of supervised release.
Counsel begins by addressing whether Smith could challenge his guilty pleas.
Counsel neglects to say whether he consulted with Smith about the risks and benefits of
raising such a challenge on appeal. 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). Despite this
omission, our review of the record and the information in counsel’s brief assures us that
a challenge to Smith’s guilty plea would be frivolous. See Konczak, 683 F.3d at 349–50.
Because Smith did not move to withdraw his plea in the district court, we would review
the acceptance of the plea only for plain error. See United States v. Davenport, 719 F.3d
616, 618 (7th Cir. 2013). The transcript of the plea colloquy shows that the district court
substantially complied with the requirements of Federal Rule of Criminal Procedure
11. See id. The district court meticulously explained to Smith the trial rights he was
waiving, the maximum and minimum penalties, and the role of the Sentencing
Guidelines in determining the sentence. FED. R. CRIM. P. 11(b)(1). The court further
ensured that Smith’s plea was supported by an adequate factual basis and entered
knowingly and voluntarily. See id. at 11(b)(2)–(3).
Counsel next considers whether Smith could raise nonfrivolous arguments about
his sentence. Although counsel does not discuss potential procedural errors, our review
reveals none. The district court adopted the properly calculated guidelines and
statutory sentencing ranges in the PSR, for both the prison and supervised-release
terms. No other potential procedural errors were preserved with an objection or are
evident from the record. See Gall v. United States, 552 U.S. 38, 51 (2007).
As for whether the sentence is substantively reasonable, we agree with counsel
that raising a challenge would be futile. We would presume that the below-guidelines
sentence for the robbery counts is not unreasonably long. See Rita v. United States,
551 U.S. 338, 341 (2007); United States v. Bonk, 967 F.3d 643, 650 (7th Cir. 2020). Nothing
No. 22-1453 Page 4
in the record could rebut this presumption. The court explained the sentences with
reference to the factors listed in 18 U.S.C. § 3553(a) when it discussed the circumstances
of the offense (including that the crimes took place “just a little over a week after
[Smith] had gotten out of prison”), Smith’s history and characteristics (such as how
Smith has “very little history of employment”), the need for the sentence to reflect the
seriousness of the offenses and protect the public from further crimes, and the need to
avoid unwarranted sentence disparities between Smith and his co-defendant. See United
States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010).
Counsel next notes that after sentencing, Smith wrote to the court and stated that
his credit for pretrial incarceration had been improperly calculated. But after
sentencing, the Attorney General, acting through the Bureau of Prisons, is responsible
for computing the credit for time served under § 3585(b), so this would not provide a
nonfrivolous ground for appeal. See United States v. Wilson, 503 U.S. 329, 331, 334 (1992);
United States v. Walker, 917 F.3d 989, 993 (7th Cir. 2019).
Finally, counsel correctly concludes that a challenge based on ineffective
assistance of counsel would be frivolous on direct appeal. Counsel represented Smith at
sentencing and would be in no position to challenge his own performance. See United
States v. Bailey, 417 F. App’x 556, 557 (7th Cir. 2011). Further, such arguments generally
should be reserved for collateral review, when the defendant may develop a full
record. See Massaro v. United States, 538 U.S. 500, 504–05 (2003).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.