United States v. Daniel Graap ( 2019 )

NONPRECEDENTIAL DISPOSITION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 March 5, 2019
Decided March 6, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-2490
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western District
of Wisconsin.
v.
No. 3:16-CR-00074-01
DANIEL GRAAP, James D. Peterson,
Defendant-Appellant. Chief Judge.
ORDER
Daniel Graap dealt methamphetamine and hid another dealer’s supply of
methamphetamine in his camper. He pleaded guilty to conspiring to distribute, and to
possessing with intent to distribute, 500 grams or more of a mixture containing
methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. The district court determined that
Graap was not eligible for the statutory safety valve because he had two criminal
history points, see 18 U.S.C. § 3553(f)(1) (2010), and did not provide the government
with complete information regarding his offense, see id. § 3553(f)(5). The court
sentenced him to ten years in prison, the statutory minimum. Id. § 841(b)(1)(A)(viii).
Graap appealed, but his appointed attorney tells us that the appeal is frivolous, and she
moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). (Graap has not
Page 2
responded to counsel’s motion. See CIR. R. 51(b).) Counsel’s submission explains the
nature of the case and the issues that the appeal might be expected to involve, so we
limit our review to the topics that she discusses. See United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014).
Counsel first tells us that she does not explore potential challenges to Graap’s
guilty plea because “Graap has affirmatively stated that he does not wish to withdraw
his plea.” But she does not expressly state that she both consulted with Graap and
“provide[d] advice about the risks and benefits” of challenging the plea, as our caselaw
requires her to do. United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Counsel’s
omission is harmless, however, because our review of the plea colloquy assures us that
the judge substantially complied with Rule 11 of the Federal Rules of Criminal
Procedure. See id.Counsel next considers challenging the district court’s determination that
operating a salvage yard without a license qualified for a criminal history point under
U.S.S.G. § 4A1.2(c). Over Graap’s objection, the court found that the prior offense was
not “similar to” driving without a license or to a local ordinance violation—either of
which ordinarily does not count towards a defendant’s criminal history points. See id.
Counsel properly concludes that this argument would be frivolous. First,
operating a salvage yard without a license is a criminal offense in Wisconsin. See WIS.
STAT. § 218.205(1), so even if it is like a local ordinance, it counts towards Graap’s
criminal history points, see U.S.S.G. § 4A1.2(c)(2); United States v. Barnes, 883 F.3d 955,
958 (7th Cir. 2018).
Second, we would not view Graap’s offense as similar to driving without a
license. In determining whether the offenses were similar, we would take a “common
sense approach” and evaluate (1) the relative punishments; (2) how the punishments
reflect on the seriousness of the offenses; (3) the offenses’ elements; (4) the requisite
culpability, and (5) the offenses’ suggestion of recurring criminal conduct. U.S.S.G.
§ 4A1.2 cmt. 12(A); United States v. Hagen, 911 F.3d 891, 894 (7th Cir. 2019). Graap’s
offense was far more serious than unlicensed driving: it was punishable by a
$500–$5,000 fine and up to 60 days in prison, see WIS. STAT. § 218.205(1), while
unlicensed driving in Wisconsin may yield only forfeiture of up to $200 for a first
offense, see WIS. STAT. § 343.05(3)(a), (5)(b). And although both laws prohibit certain
unlicensed activity, unlicensed operation of car-salvaging business strikes us as
requiring greater culpability than unlicensed driving because “there is a substantial
difference in the manner in which the crime is perpetrated,” United States v. Harris,
Page 3
325 F.3d 865, 872–73 (7th Cir. 2003). The former, for example, requires “carry[ing] on or
conduct[ing] … business” over time, WIS. STAT. § 218.205(1), and the latter requires just
driving once, WIS. STAT. § 343.05(3)(a). Finally, running an unlicensed salvage yard, as
the district court observed, is more suggestive of future criminal behavior because it is
more likely to involve other criminal conduct—dealing stolen cars and car parts, tax
evasion, etc.
Counsel also considers challenging the district court’s conclusion that Graap did
not qualify for the safety valve because he did not provide the government with a full
and honest disclosure of his offense, but she again rightly concludes that this point
would be frivolous. Graap bore the burden of showing that his disclosure was truthful
and complete. See United States v. Acevedo-Fitz, 739 F.3d 967, 972 (7th Cir. 2014). Graap
told investigators about four customers and his storage of methamphetamine in his
camper for another dealer, but he did not mention a fifth regular customer or that he
hid, sold, and used the other dealer’s supply. The court reasonably determined that
these facts were “material enough to have been disclosed” and that Graap’s omissions
were “too significant to really be the kind of oversight that’s understandable.” Graap
stated at his sentencing hearing that he simply forgot to provide this information, but
we would not consider his “mere assertion” of honesty “enough to undermine the
court’s finding.” United States v. Ortiz, 775 F.3d 964, 968 (7th Cir. 2015).
Lastly, counsel considers challenging the procedural soundness or substantive
reasonableness of the sentence. Because the district court lacked discretion to sentence
Graap to less than ten years in prison, however, counsel properly declined to raise this
challenge. See Ortiz, 775 F.3d at 969.
In the course of reviewing counsel's motion, we noted an error in the judgment
that we take the opportunity to correct, so that it accurately reflects the crime of
conviction. See FED. R. CRIM. P. 36. Accordingly, we GRANT counsel’s motion to
withdraw and DISMISS the appeal. We also MODIFY the judgment to name Graap’s
offense as “Conspiracy to Distribute 500 grams or More of a Mixture or Substance
Containing Methamphetamine, Class A felony.”