United States v. Jamie Moody , 770 F.3d 577 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-3875 & 13-3920
UNITED STATES OF AMERICA,
Plaintiff-Appellant, Cross-Appellee,
v.
JAMIE L. MOODY,
Defendant-Appellee, Cross-Appellant.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:13-cr-00134-JPS-1 — J. P. Stadtmueller, Judge.
SUBMITTED AUGUST 28, 2014* — DECIDED OCTOBER 21, 2014
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Jamie Moody was convicted of
possessing a firearm after a felony conviction. See 18 U.S.C.
§ 922(g)(1). Under the Armed Career Criminal Act (“ACCA”),
id. § 924(e), he was subject to a fifteen-year statutory minimum
*
After examining the parties’ briefs and the record, we have concluded that
oral argument is unnecessary. See Fed. R. App. P. 34(a)(2)(C).
2 Nos. 13-3875 & 13-3920
sentence. The district court nevertheless imposed a twelve-year
sentence, which is three years below the minimum required by
law. The Government appealed (No. 13-3875). Mr. Moody filed
a separate appeal (No. 13-3920) in which he claims that his
guilty plea should be set aside. We vacate Mr. Moody’s
sentence and remand for resentencing before a different district
judge. Further, because we agree with Mr. Moody’s counsel
that there are no nonfrivolous arguments for setting aside
Mr. Moody’s guilty plea, we dismiss that appeal.
I
BACKGROUND
In the summer of 2013, police in Milwaukee, Wisconsin,
responded to a report of shots fired behind a residence.
Nearby, the officers discovered Jamie Moody with a loaded
pistol. Mr. Moody admitted that the gun was his. He later
pleaded guilty to an information charging him with possessing
a firearm as a felon. See 18 U.S.C. § 922(g)(1).
The information and plea agreement recount that
Mr. Moody previously had been convicted of three violent
felonies: (1) a 1993 Florida conviction for armed burglary of a
dwelling, (2) another Florida conviction a year later for robbing
a motel with a firearm and (3) a 2005 Wisconsin conviction for
robbing a bank in Milwaukee. The convictions, the parties
agreed, brought Mr. Moody within the ACCA. See 18 U.S.C.
§ 924(e).
At Mr. Moody’s change-of-plea hearing, the district court
determined that the defendant understood the charge against
Nos. 13-3875 & 13-3920 3
him and the consequences of pleading guilty. The court also
confirmed that Mr. Moody was pleading guilty voluntarily.
The court asked Mr. Moody whether he had read the plea
agreement, understood it and discussed it with his lawyer.
Mr. Moody responded that he had. The court then asked
whether the factual basis for the plea contained in the plea
agreement was accurate; Mr. Moody confirmed that it was. The
court next asked, “Did anyone threaten you or coerce you in
any way, or promise you anything in order to get you to sign
this document?”1 Mr. Moody replied no. Lastly, the judge
asked about his appointed lawyer’s performance: “Are there
any other matters that you believe that she may not have been
of assistance to you on?”2 Mr. Moody again replied no. The
court then accepted Mr. Moody’s guilty plea and directed the
probation officer to prepare a Presentence Investigation
Report.
The probation officer agreed with the parties that
Mr. Moody is subject to a fifteen-year statutory minimum
sentence under the ACCA. See 18 U.S.C. § 924(e). If not for that
mandatory penalty, Mr. Moody’s guidelines imprisonment
range under U.S.S.G. § 4B1.4 would have been 135 to 168
months, based on a total offense level of 30 and criminal
history category of IV. Neither party objected to the presenten-
ce report, and the district court adopted it.
At sentencing, the Government—complying with the plea
agreement—recommended a fifteen-year prison term. The
1
R.40 at 9.
2
Id. at 7–8.
4 Nos. 13-3875 & 13-3920
district court declined to impose this statutory minimum,
however, and instead imposed a twelve-year sentence. The
court acknowledged that Mr. Moody’s conviction in 1993 for
armed burglary “technically scored as a violent felony”3 but
reasoned that using this conviction to enhance Mr. Moody’s
sentence would cause a “miscarriage of fundamental justice”4
given the “nature of the offense [and] its age.”5
II
DISCUSSION
The Government now appeals the district court’s decision.6
It submits that the district court lacked authority to impose a
sentence lower than the fifteen years mandated by § 924(e).
Mr. Moody’s appointed counsel agrees with that assessment.
Both parties ask that we order Mr. Moody’s sentence be
increased to fifteen years. In their view, this approach is
preferable to a remand to the district court with instructions to
make such a change. Mr. Moody, on the other hand, has filed
a cross-appeal seeking to have his guilty plea set aside.
3
R.21-2 at 1.
4
R.22 at 13.
5
R.21-2 at 1.
6
See 18 U.S.C. § 3742(b).
Nos. 13-3875 & 13-3920 5
A.
We begin with the Government’s appeal and conclude that
Mr. Moody’s sentence must be corrected. The district court
appropriately accepted the parties’ conclusion—confirmed by
the unchallenged presentence report—that Mr. Moody’s
Florida conviction for the armed burglary of a dwelling is a
violent felony under the ACCA.7 The district court, therefore,
had no authority to ignore the conviction because of its age or
its underlying circumstances. Such considerations are irrele-
vant in determining predicate offenses under the Act.8 Al-
though the sentencing guidelines are discretionary, a district
court may not disregard a minimum sentence required by
statute.9 Mr. Moody’s twelve-year sentence is illegal, and it
must be corrected.
We cannot accept, however, the parties’ invitation that we
make that correction ourselves. The Sentencing Reform Act of
1984 removed any discretion that we previously may have had
to correct an illegal sentence and compels a remand to the
7
See United States v. Aviles-Solarzano, 623 F.3d 470, 474–76 (7th Cir. 2010);
United States v. Thornton, 463 F.3d 693, 700–01 (7th Cir. 2006); United States
v. Davenport, 986 F.2d 1047, 1048 (7th Cir. 1993).
8
See Shepard v. United States, 544 U.S. 13, 15–17 (2005); United States v.
Johnson, 743 F.3d 1110, 1111 (7th Cir. 2014); United States v. Nigg, 667 F.3d
929, 937 (7th Cir. 2012); United States v. Woods, 576 F.3d 400, 404 (7th Cir.
2009).
9
See United States v. Zuno, 731 F.3d 718, 724 (7th Cir. 2013); United States v.
Brucker, 646 F.3d 1012, 1016 (7th Cir. 2011); United States v. Clark, 538 F.3d
803, 809–10 (7th Cir. 2008).
6 Nos. 13-3875 & 13-3920
district court for resentencing.10 We therefore will vacate
Mr. Moody’s sentence and remand with instructions to impose
a fifteen-year sentence in accordance with 18 U.S.C. § 924(e).
B.
We now turn to Mr. Moody’s appeal. Although Mr. Moody
filed a notice of appeal, his newly appointed counsel submits
that his appeal is frivolous and therefore moves to withdraw
under Anders v. California, 386 U.S. 738 (1967). Because the
analysis in counsel’s brief appears to be thorough, we limit our
review to the subjects that counsel discusses as well as to the
matters that Mr. Moody raises in his response opposing
counsel’s motion.11
Mr. Moody asks that we set aside his guilty plea. He
maintains that the lawyer representing him at his plea hearing
coerced him into pleading guilty by telling him that he would
spend the rest of his life in prison if he did not accept the deal
offered by the Government.
Noting that a plea is voluntary “when it is not induced by
threats or misrepresentations and the defendant is made aware
10
See 18 U.S.C. § 3742(f)(1); United States v. Williams, 552 F.3d 592, 594 (7th
Cir. 2009) (distinguishing United States v. Mathis, 579 F.2d 415, 420 (7th Cir.
1978), which the parties cite as authority for the proposition that we may
correct Mr. Moody’s sentence); United States v. Badger, 925 F.2d 101, 106 (5th
Cir. 1991) (recognizing that § 3742(f)(1) requires remand).
11
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Nos. 13-3875 & 13-3920 7
of the direct consequences of the plea,” and that there is a
presumption that the defendant’s testimony in a plea colloquy
is truthful, see United States v. Messino, 55 F.3d 1241, 1248 (7th
Cir. 1995) (internal quotation marks omitted), present counsel
examines the plea colloquy required by Rule 11 of the Federal
Rules of Criminal Procedure. Counsel notes that the district
court complied with almost every requirement of Rule 11. The
court explained the nature of the charge and some of the
potential penalties that a conviction entailed, including the
minimum prison term, the maximum term of supervised
release as well as the maximum fine and the special assess-
ment. Having informed Mr. Moody of the possibility of a
perjury prosecution if he did not tell the truth, the court found
that the plea was knowing and voluntary and that there was a
factual basis for the plea. The court also discussed the plea
agreement with Mr. Moody.
Counsel, nonetheless, acknowledges that there were several
omissions from the court’s Rule 11 inquiry. The court neglected
to inform Mr. Moody that, as an armed career criminal, he
faced up to a life sentence under the statute. Rule 11(b)(1)(H)
requires the disclosure of the maximum term permitted by
statute. Counsel goes on to explain, however, that this omis-
sion could not constitute plain error because Mr. Moody
received a sentence no higher than the statutory minimum and
he had been informed that he faced a sentence of that length.
Moreover, the plea agreement, which Mr. Moody signed, had
reviewed the maximum penalty.
Counsel further notes that the district court did not explain
the application of the Sentencing Guidelines nor the pertinent
factors employed in sentencing under 18 U.S.C. § 3553(a). Here
8 Nos. 13-3875 & 13-3920
again, counsel notes, this omission cannot constitute plain error
because Mr. Moody received the minimum sentence and
acknowledged the sentencing process in his plea agreement.12
We agree with present counsel’s assessment of this argu-
ment. Mr. Moody did not seek to withdraw his guilty plea in
the district court, and it would be frivolous to argue that the
court plainly erred by accepting his plea. During the plea
colloquy the district judge asked Mr. Moody if anyone had
threatened or coerced him or made additional promises so that
he would accept the plea agreement; Mr. Moody replied no.
There is no reason to disbelieve Mr. Moody’s sworn statements
and, thus, no reason to disturb his guilty plea. See Messino, 55
F.3d at 1248–49; Hutchings v. United States, 618 F.3d 693, 699
(7th Cir. 2010).
Mr. Moody also contends that previous counsel was
ineffective on numerous grounds, but that claim should be
pursued in a collateral proceeding under 28 U.S.C. § 2255.13
12
We agree with counsel that the district court’s failure to mention
restitution and forfeiture were harmless because neither was contemplated.
13
See Massaro v. United States, 538 U.S. 500, 505 (2003) (“Under the rule we
adopt today, ineffective-assistance claims ordinarily will be litigated in the
first instance in the district court, the forum best suited to developing the
facts necessary to determining the adequacy of representation during an
entire trial.”); United States v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014) (“A
claim of ineffective assistance need not, and usually as a matter of prudence
should not, be raised in a direct appeal, where evidence bearing on the
claim cannot be presented and the claim is therefore likely to fail even if
meritorious.”); United States v. Jones, 696 F.3d 695, 702 (7th Cir. 2012) (“As
is our practice, we decline to consider the ineffective assistance of counsel
(continued...)
Nos. 13-3875 & 13-3920 9
Finally, present counsel examines, at some length, whether
there are any infirmities in Mr. Moody’s sentence and con-
cludes that there are none. We agree that Mr. Moody was
properly designated as an armed career criminal and that there
are no nonfrivolous arguments that could lead to a lower
sentence.
Conclusion
Accordingly, in appeal number 13-3875 we vacate Jamie
Moody’s sentence and remand for resentencing in conformity
with 18 U.S.C. § 924(e). Circuit Rule 36 shall apply on remand.
We also grant appointed counsel’s motion to withdraw and
dismiss appeal number 13-3920.
APPEAL 13-3875 SENTENCE VACATED;
CASE REMANDED
APPEAL 13-3920 DISMISSED
13
(...continued)
claims on direct appeal since determination of such claims requires
evidence that is outside the trial record.”); United States v. Harris, 394 F.3d
543, 557–58 (7th Cir. 2005) (cautioning defendants not to bring ineffective
assistance of counsel claims on direct appeal).