United States v. Bernard Robertson , 492 F. App'x 692 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 November 19, 2012
Decided December 19, 2012
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-3110
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Western District of Wisconsin.
v. No. 10-CR-186-BBC
BERNARD ROBERTSON, Barbara B. Crabb,
Defendant–Appellant. Judge.
ORDER
Bernard Robertson was arrested in Wisconsin in possession of pseudoephedrine,
used to make methamphetamine, after attempting to elude police officers in a car chase. He
pleaded no contest in state court to possessing a methamphetamine precursor and was
sentenced to two years in prison. See WIS. STAT. § 961.65. While serving that sentence he
was charged in federal court with conspiracy to possess pseudoephedrine with intent to
manufacture methamphetamine. See 21 U.S.C. §§ 846, 841(c)(1). Robertson pleaded guilty,
and the district court calculated a guidelines imprisonment range of 188 to 235 months
based on a total offense level of 31, see U.S.S.G. §§ 2D1.11(d)(4), 3C1.2, 3E1.1, and criminal-
history category of VI. The court sentenced Robertson to 211 months, taking into account
his incarceration on the state charge. See U.S.S.G. § 5G1.3. Robertson filed a notice of appeal,
but his newly appointed lawyer contends that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Robertson has not responded to
No. 11-3110 Page 2
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified
in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir.
2002).
Although counsel discusses whether Robertson could challenge his guilty plea, the
lawyer does not say whether Robertson agreed to this course of action. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002). If counsel did not consult Robertson, he should have. But counsel’s apparent
omission is harmless because he concludes, and we agree, that the transcript of the plea
colloquy demonstrates the district court’s substantial compliance with Federal Rule of
Criminal Procedure 11(b). See Konczak, 683 F.3d at 349. The district court explained the
rights Robertson would relinquish by pleading guilty, admonished him concerning the
consequences of his plea, ensured that it was voluntary, and determined that a factual basis
for the plea existed. See FED. R. CRIM. P. 11(b). On the present record, therefore, a challenge
to the plea colloquy or the voluntariness of Robertson’s guilty plea would be frivolous.
Appellate counsel also discusses whether Robertson could challenge his prison
sentence. Counsel has not identified any potential error in the district court’s guidelines
calculations or any procedural flaw in the sentencing proceedings. That leaves only the
possibility of a challenge to the reasonableness of the sentence imposed, a claim that
counsel correctly labels as frivolous. The court imposed a within-guidelines sentence,
which we presume is reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). Counsel has not identified any reason to
set aside this presumption, nor can we. The district court discussed Robertson’s criminal
history, the failure of past sentences to deter him from crime, his need for drug treatment,
and the need to protect the public. See 18 U.S.C. § 3553(a).
Counsel last considers whether Robertson could challenge his trial counsel’s
performance during plea negotiations or at sentencing. The lawyer himself has not
confirmed any deficient performance on which to base a claim of ineffective assistance, but
Robertson apparently believes that previous counsel should have objected to the quantity
of pseudoephedrine attributed to him, see United States v. Jones, 635 F.3d 909, 915–16 (7th
Cir. 2011), and obtained records from the Internal Revenue Service and the Social Security
Administration to alleviate the probation officer’s skepticism about Robertson’s unverified
claim that he had been employed before his arrest, see Stevens v. McBride, 489 F.3d 883,
895–96 (7th Cir. 2007). Appellate counsel speculates that his predecessor’s choices might
have been strategic or that any deficiency was not prejudicial. See Strickland v. Washington,
466 U.S. 668, 694 (1984); United States v. Parker, 609 F.3d 891, 894–95 (7th Cir. 2010). But this
kind of uncertainty is the very reason that a claim of ineffective assistance of counsel is best
left for a postconviction proceeding where the record may be developed. See Massaro v.
No. 11-3110 Page 3
United States, 538 U.S. 500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58 (7th
Cir. 2005).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.