United States v. Demetrise Harper ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1725
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMETRISE L. HARPER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 16-cr-10052 — James E. Shadid, Judge.
____________________
ARGUED JUNE 12, 2019 — DECIDED AUGUST 8, 2019
____________________
Before WOOD, Chief Judge, and BARRETT and ST. EVE, Circuit
Judges.
WOOD, Chief Judge. Demetrise Harper appeals from the
district court’s denial of his motion to withdraw his plea of
guilty to three charges: possession of a firearm in furtherance
of a drug-trafficking crime, 18 U.S.C. § 924(c); possession of a
firearm by a felon, id. § 922(g); and possession with intent to
distribute and distribution of a controlled substance, 21 U.S.C.
§ 841(a)(1), (b)(1)(C). In moving to withdraw his plea, Harper
2 No. 18-1725
argued that he was innocent of the first because he never
“possessed” the gun, and that his plea was not knowing and
voluntary because he had received ineffective assistance of
counsel. We affirm the judgment.
I
The criminal complaint charges that Harper offered to sell
crack cocaine to a confidential police informant in exchange
for a gun. To facilitate the deal, the informant sent Harper a
photograph of a pistol and two magazines. Harper expressed
interest and was ready to trade five grams of crack cocaine for
the pistol and magazines.
On the day fixed for the deal, the informant and an under-
cover agent met Harper in a parking lot. The agent, who was
sitting in the back seat of a truck, opened a toolbox containing
the gun and handed the gun to Harper, who at that point was
standing next to the truck. Harper held it, inspected it, and
voiced doubts that it was the same pistol as in the photograph.
Even so, he furnished most of the crack cocaine and promised
the rest within an hour; he got into the front passenger seat to
wait. After Harper asked for the two magazines, the agent re-
turned the gun to the toolbox, locked it (saying that he was
doing this so that the police would have “to get a warrant” to
open it), and placed the toolbox in Harper’s lap. He then left
the truck, ostensibly to retrieve the magazines. Harper tried
but was unable to open the toolbox by himself. As the inform-
ant reached over to help, the police arrived and arrested Har-
per. The indictment followed soon thereafter.
A court-appointed lawyer, Rodney Nordstrom, became
Harper’s counsel after his first lawyer withdrew. Nordstrom
also sought leave to withdraw, citing a breakdown in the
No. 18-1725 3
attorney-client relationship. Harper complained that
Nordstrom refused to review evidence or prepare for trial,
but Nordstrom contested both accusations. The district court
denied Nordstrom’s motion, and soon after, Harper agreed to
plead guilty under a written plea agreement pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C)—that is, an
agreement that specified the sentence Harper would receive.
The plea agreement called for 96 months’ incarceration—60
months for possession of a firearm in furtherance of a drug-
trafficking crime (the mandatory minimum) and 36 months
for the remaining counts, possession of a firearm by a felon
and possession with intent to distribute, to be served
consecutively to the first sentence but concurrently to each
other.
Next came a change-of-plea hearing. There Harper told
the court that he was “willing to plead,” but he complained
that Nordstrom had not answered his questions about the
sentence. The district judge explained the sentence to Harper,
specifying which parts would run consecutively to the others.
The judge then asked Harper whether 96 months was an “ac-
ceptable” sentence. Harper said that it was, confirmed that he
had no other questions, and asked to proceed with the plea
colloquy. The judge did so, reviewing all the admonishments
for a change of plea, including the rights that Harper was giv-
ing up by pleading guilty and the plea’s factual basis. See FED.
R. CRIM. P. 11(b).
After the colloquy, the judge asked the parties for the ap-
plicable Sentencing Guidelines range. Nordstrom stated that
he believed the range was 156 to 162 months. The judge re-
sponded that the exact range would be calculated later in the
presentence report, adding that he would accept the plea
4 No. 18-1725
agreement now if Harper was amenable to a 96-month sen-
tence. Harper agreed to that sentence, and on that under-
standing the district court accepted his guilty plea.
Three months later, Harper moved to withdraw his guilty
plea, arguing that the plea was not knowing and voluntary
because his lawyer was ineffective. This contention prompted
Nordstrom to renew his request to withdraw as counsel; this
time, the court granted the motion. Harper obtained new
counsel, who added a second ground in support of the motion
to withdraw the plea: actual innocence. Harper argued that
he did not “possess” a firearm in furtherance of a drug-
trafficking crime because the transaction “was incomplete at
best,” and he never had “full control of th[e] firearm.”
After hearing the government’s evidence in support of the
charges, the district court denied Harper’s motion. It ruled
that the guilty plea was knowing and voluntary because Har-
per confirmed during the plea colloquy that he understood
the plea deal and that he was guilty of the offenses. Harper
could not assert actual innocence, the court said, because that
would conflict with his previous admission of guilt.
II
A defendant “does not have an absolute right to with-
draw” a guilty plea, United States v. Cieslowski, 410 F.3d 353,
358 (7th Cir. 2005), but a court has discretion to allow it if the
defendant presents “a fair and just reason.” FED. R. CRIM. P.
11(d)(2)(B).
On appeal, Harper contends that the district court abused
its discretion in denying his motion to withdraw the guilty
plea. See United States v. Fard, 775 F.3d 939, 943 (7th Cir. 2015).
He reprises the two allegedly “fair and just” reasons that he
No. 18-1725 5
offered to the district court—that he is innocent of the section
924(c) charge that he “possessed” a firearm “in furtherance
of” a drug crime, and that he received ineffective assistance of
counsel in connection with the plea.
First, Harper maintains that he did not violate section
924(c) because he never completed the gun-for-drugs deal.
“Legal innocence” can be a fair and just reason for withdraw-
ing a guilty plea. See United States v. Hodges, 259 F.3d 655, 661
(7th Cir. 2001). But section 924(c) does not require a com-
pleted transaction, and so it is irrelevant that Harper’s trade
might have been incomplete. See United States v. Castillo,
406 F.3d 806, 816 (7th Cir. 2005) (explaining that a completed
transaction is not a necessary element under section 924(c)).
Instead, to violate section 924(c), a defendant must acquire
possession of the gun during a drug deal. “Receiving a gun in
exchange for drugs,” as Harper did when he sat in the truck
and handed over most of the promised cocaine, qualifies as
possession of a firearm in furtherance of a drug-trafficking
crime. See United States v. Doody, 600 F.3d 752, 755 (7th Cir.
2010); see also United States v. Dickerson, 705 F.3d 683, 689
(7th Cir. 2013) (requiring gun and drugs “to change hands,”
though noting that the order of the exchange is irrelevant).
Harper responds that because the gun ended up in a
locked tool box, he never truly “possessed” it as required by
section 924(c). He is mistaken. Possession of a weapon can be
either actual or constructive, see United States v. Conley,
875 F.3d 391, 400 (7th Cir. 2017), and the government supplied
evidence that Harper possessed the gun both ways. Harper
conceded that he had, at least briefly, actual possession of the
firearm when the undercover agent handed it to him. Indeed,
6 No. 18-1725
Harper held the gun long enough to inspect its surface details
and compare it to the gun in the photograph.
Even if his actual possession was too brief to satisfy the
statute (and that is not the way we view the facts), Harper had
constructive possession once the gun was on his lap in the
locked toolbox. Constructive possession occurs when “the de-
fendant knowingly had the power and intention to exercise
dominion and control over the [gun], … establishing a nexus
between himself and the [gun].” See United States v. Jones,
872 F.3d 483, 489 (7th Cir. 2017) (internal citations omitted).
Either exclusive control or a substantial connection to the gun
can create an “inference that the defendant exercised domin-
ion and control” over it. See United States v. Cejas, 761 F.3d 717,
728 (7th Cir. 2014). Here, the pre-trade conversations between
Harper and the informant show Harper’s desire for the gun.
That desire, and Harper’s proximity to the gun when the box
rested on his lap, establish the power and intent to control the
gun as part of the drug sale. See United States v. Webster,
775 F.3d 897, 905 (7th Cir. 2015) (finding that evidence of mo-
tive, in addition to proximity to item, may show constructive
possession); United States v. Brown, 724 F.3d 801, 804 (7th Cir.
2013) (same).
Harper replies that he could not constructively possess the
gun because it was locked inside the tool box. But when a de-
fendant has close, physical contact with a box containing a
gun, its locked status does not negate possession of its con-
tents. See Cejas, 761 F.3d at 728 (drug dealer constructively
possessed gun in locked toolbox because box was physically
attached to his own truck); cf. United States v. Herrera, 757 F.2d
144, 150 (7th Cir. 1985) (defendant did not constructively pos-
sess contents of a locked footlocker where no fingerprints or
No. 18-1725 7
other evidence of his physical contact were found on foot-
locker). And, for safety reasons, the police understandably
did not want to leave a suspected drug dealer alone with un-
fettered access to a gun. Harper’s close connection to the gun
justified the section 924(c) charge.
III
This brings us to Harper’s other “fair and just” reason for
withdrawing the guilty plea—ineffective assistance of coun-
sel. The district court reasoned that Harper cannot succeed on
this argument because his admission of guilt during the plea
colloquy conflicted with a claim of ineffective assistance. But
“a plea, even one that complies with Rule 11, cannot be
‘knowing and voluntary’ if it resulted from ineffective assis-
tance of counsel.” Hurlow v. United States, 726 F.3d 958, 967
(7th Cir. 2013). Thus, if the record shows that Harper received
ineffective assistance of counsel, his admission of guilt does
not bar him from withdrawing the guilty plea.
To establish ineffective assistance of counsel in the context
of a guilty plea, a defendant must show that counsel’s perfor-
mance fell below an objective standard of reasonableness, and
there is a reasonable probability that, but for the errors, the
defendant would not have pleaded guilty. Hill v. Lockhart,
474 U.S. 52, 57–59 (1985). Harper sees three deficiencies in
Nordstrom’s performance: (1) he ignored an obvious and
meritorious defense of actual innocence on the section 924(c)
charge; (2) he misstated the guidelines sentencing range; and
(3) during plea discussions, he did not explain the sentence to
Harper. None of these amounts to ineffective assistance.
8 No. 18-1725
We begin with Harper’s argument that counsel should
have argued that Harper did not possess the gun in further-
ance of the drug crime. Counsel’s failure to raise a “plainly
meritorious objection could constitute deficient performance
if proven.” See Brock-Miller v. United States, 887 F.3d 298, 310
(7th Cir. 2018); see also Hinton v. Alabama, 571 U.S. 263, 274
(2014) (“An attorney’s ignorance of a point of law that is fun-
damental to his case combined with his failure to perform
basic research on that point is a quintessential example of un-
reasonable performance.”). The government concedes that
Nordstrom did not argue Harper’s innocence, and that Har-
per complained on the record that Nordstrom expressed no
interest in researching or raising any argument. But by omit-
ting this argument, Nordstrom was not constitutionally defi-
cient; as we already have explained, the argument that Harper
did not “possess” a gun is fatally flawed—the opposite of
“plainly meritorious.”
Harper’s remaining two arguments are not persuasive ei-
ther, because he cannot show prejudice. Harper correctly ob-
serves that Nordstrom overstated the guidelines range for an
unconditional plea when he said that it was approximately
156 to 162 months when, the parties agree, the correct range
might have been as low as 101 to 111 months, or 117 to 131
months if he had gone to trial. Harper has not said, either in
his motion to withdraw or on appeal, that, but for this error,
he would not have pleaded guilty. Without prejudice from
this error, his claim of ineffective assistance fails. See Hill,
474 U.S. at 57–59.
A similar problem plagues Harper’s argument that
Nordstrom did not adequately explain to him the sentencing
sequence (i.e. what is concurrent and what is consecutive) on
No. 18-1725 9
his three counts. The district court cured any possible preju-
dice from this omission by providing Harper with a thorough
explanation of the sentencing sequence, after which Harper
affirmed that he understood and had no further questions. See
Hays v. United States, 397 F.3d 564, 568–69 (7th Cir. 2005). Be-
cause of this intervention, Harper cannot establish prejudice
from any ineffective assistance.
IV
We AFFIRM the district court’s judgment.