United States v. Knox, Larry D. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3099
United States of America,
Plaintiff-Appellee,
v.
Larry D. Knox,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:00CR40110--J. Phil Gilbert, Judge.
Submitted March 26, 2002--Decided April 29, 2002
Before Posner, Easterbrook, and Ripple,
Circuit Judges.
Easterbrook, Circuit Judge. Following his
indictment on three counts of peddling
crack cocaine, see 21 U.S.C.
sec.841(a)(1), Larry Knox pleaded guilty.
His reward was a three-level subtraction
for acceptance of responsibility. See
U.S.S.G. sec.3E1.1(b). That reduction
sliced at least 84 months off his
punishment: his sentence was 240 months
(from a range of 235-293 months), while
the range without the credit would have
been 324-405 months. Believing that his
sentence should have been lower still,
Knox instructed his lawyer to file a
notice of appeal.
Representing that he cannot identify any
non-frivolous issue, counsel has filed a
brief under Anders v. California, 386
U.S. 738 (1967), seeking our permission
to withdraw. One question that counsel
considers is whether Apprendi v. New
Jersey, 530 U.S. 466 (2000), could be
used to cut down the sentence. Counsel
believes that any such argument would be
futile, an accurate assessment. Apprendi
holds that facts that increase the
statutory maximum punishment must be
established to the satisfaction of the
trier of fact beyond a reasonable doubt.
But the statutory maximum for
distributing any amount of cocaine is 240
months’ imprisonment, see 21 U.S.C.
sec.841(b)(1)(C), and Knox was convicted
on three counts, so for him the maximum
is 60 years (720 months). Although the
courts of appeals do not agree whether,
in the wake of Apprendi, U.S.S.G.
sec.5G1.2(d) still compels a judge to use
consecutive sentences when necessary to
construct a term within the Guideline
range, compare United States v. Angle,
254 F.3d 514, 518-19 (4th Cir. 2001) (en
banc) (yes), with United States v.
Vasquez-Zamora, 253 F.3d 211, 214 (5th
Cir. 2001) (no), every court of appeals
believes that consecutive sentences are
lawful if the district judge chooses to
impose them. See United States v.
Buckland, 277 F.3d 1173, 1184-86 (9th
Cir. 2002) (en banc) (collecting
authority); United States v. Bradford,
246 F.3d 1107, 1114 (8th Cir. 2001). For
Knox it was possible to sentence within
the 235-293 month range without
consecutive terms, and the district judge
chose that option. Apprendi poses no
conceivable obstacle. See Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir.
2000).
Next counsel asks whether there is a
non-frivolous objection to the
calculations that produced the 235-293
month range. Two elements dominated: the
quantity of cocaine included in Knox’s
relevant conduct and a two-level addition
under U.S.S.G. sec.2D1.1(b)(1) for
possessing a firearm. Counsel concludes
that there is no prospect of upending the
sentence, and again we agree. Findings of
fact about relevant conduct may be upset
only for clear error, see United States
v. Johnson, 227 F.3d 807, 812-13 (7th
Cir. 2000), and these findings--based as
they were on the district judge’s
decision to believe two persons who
testified about their dealings with Knox-
-are all but impossible to upset. See
Anderson v. Bessemer City, 470 U.S. 564,
575 (1985). One of these witnesses
testified that she accompanied Knox on
two trips to buy cocaine and then
transported drugs for him; the second
witness testified that Knox had traded a
gun for crack. Far from providing grounds
to reduce the sentence, these facts
suggest that Knox received a break. The
397 grams of crack that the district
judge found to be Knox’s relevant conduct
represented just two transactions about
which the first witness testified.
Although the evidence at sentencing shows
that Knox conducted a drug-distribution
business, the full scope of which must
have exceeded 500 grams, his sentence was
based on the range for 150 to 499 grams.
Other potential lines of argument that
counsel evaluates would be even weaker,
because not raised at all in the district
court. Indeed, Knox and his lawyer
informed the judge that, with the
exception of the issues we have just
mentioned, they had no problems with the
conclusions of the presentence report.
That representation waived any other
theories related to the sentence. See
United States v. Scanga, 225 F.3d 780,
783 (7th Cir. 2000).
Let us now go back to where counsel
began. In what seems to have become an
obligatory performance in every Anders
brief, counsel first inquired whether it
is possible to challenge the guilty plea
on the ground that the judge did not
comply with Fed. R. Crim. P. 11. Knox did
not ask the district judge for leave to
withdraw his plea, so only plain error
could justify relief, see United States
v. Vonn, 122 S. Ct. 1043 (2002), and that
is an exacting standard. See Johnson v.
United States, 520 U.S. 461 (1997);
United States v. Olano, 507 U.S. 725
(1993). Although counsel tells us that he
found no flaws in the Rule 11 colloquy,
he did not look closely enough. The
district judge did not explicitly remind
Knox of his right to plead not guilty,
see Rule 11(c)(3)--though Knox, who
already had pleaded not guilty and sought
to alter that plea, obviously knew this--
and failed to inform Knox what could
happen if he violated the terms of the
supervised release that would follow his
imprisonment, see Rule 11(c)(1). Again it
is likely that Knox knew that bad things
(such as a return to prison) lay in store
if he failed to abide by the terms of
release, but counsel’s failure to find
and discuss these shortcomings in the
guilty-plea procedure raises some doubts
about the thoroughness with which he
prepared this Anders brief.
Yet there is an antecedent question:
Does Knox want to withdraw his plea,
forfeit the three-level reduction, go to
trial, and take the risk of a longer
sentence? The sentence is likely to be
longer not only because the range will
jump to 324-405 months if everything else
stays the same while Knox loses the
reduction for acceptance of
responsibility, but also because the
testimony at trial may identify
additional relevant conduct, which could
produce a higher sentence without any
claim of prosecutorial vindictiveness.
See Alabama v. Smith, 490 U.S. 794
(1989). What is more, the judge might ask
the jury to decide whether Knox
distributed more than 5 grams of crack;
if the jury answered yes, the maximum
sentence would jump to 40 years per
count. 21 U.S.C. sec.841(b)(1)(B)(iii).
Appellate lawyers are not obliged to
raise issues that could boomerang on
their clients; it is no failure of
advocacy to leave well enough alone.
Defendants are entitled to competent
appellate representation. Good advocates
do not raise every non-frivolous legal
issue. Counsel’s duty is to present those
contentions that promote the client’s
interest. Sometimes a litigant may want
to take a potentially injurious step, and
because it is his liberty that lies in
the balance courts allow defendants to do
so at trial. Thus before a case concludes
in the district court counsel should
consult with the client to determine
whether the accused wants to withdraw the
plea. Cf. Roe v. Flores-Ortega, 528 U.S.
470, 477-81 (2000). But if a client
should express a desire to advance a Rule
11 argument on appeal, counsel would be
entitled to make an independent decision.
A lawyer may limit appellate arguments to
those that in his best judgment would do
more good than harm. See Jones v. Barnes,
463 U.S. 745 (1983). Cf. Martinez v.
Court of Appeal, 528 U.S. 152 (2000).
Lawyers should not blindly assume that
their clients will benefit from every
legal contention, no matter the hazard,
and in particular should not present (or
even explore in an Anders submission) a
Rule 11 argument unless they know after
consulting their clients, and providing
advice about the risks, that the
defendant really wants to withdraw the
guilty plea. See United States v. Driver,
242 F.3d 767, 770 (7th Cir. 2001).
Nothing we have seen suggests that Knox
wants to withdraw his plea, so we do not
think it matters that counsel has
supplied a substandard assessment of the
tools that might be available if Knox did
want to start over.
Knox received notice of counsel’s desire
to withdraw, see Circuit Rule 51(b), and
has filed three responses. These evince
dissatisfaction with the length of his
sentence and a desire to argue that
counsel was ineffective at sentencing for
not making additional objections to the
presentence report and not presenting
evidence in opposition to the
prosecutor’s witnesses. An ineffective-
assistance claim would be premature on
direct appeal; Knox may pursue his
options under 28 U.S.C. sec.2255. See
Glover v. United States, 531 U.S. 198
(2001). Knox believes that the
calculation ofrelevant conduct is limited
to the drug quantities listed in the
indictment, but that view is untenable.
See Edwards v. United States, 523 U.S.
511 (1998); United States v. Bjorkman,
270 F.3d 482 (7th Cir. 2001). The closest
Knox comes in any of his three filings to
expressing a desire to withdraw the plea
is this passage: "Counsel was ineffective
for tell me to Plead guilty to three
counts, when He Had only Two laboratory
Analysis Reports, and I consistently Told
frist Counsel [the appellate lawyer’s
predecessor] I only Remember Two (2)
sales to c/s". This story conflicts with
what Knox said in open court, where he
told the judge that he was pleading
guilty to all three counts because he did
what the indictment alleges and thus is
guilty. A defendant’s assertion that he
committed perjury in the judge’s presence
is a poor reason to start anew. United
States v. Stewart, 198 F.3d 984 (7th Cir.
1999). See also Blackledge v. Allison,
431 U.S. 63, 74 (1977); Menna v. New
York, 423 U.S. 61, 62 n.2 (1975). Still,
unless Knox wants to withdraw his plea to
all three counts, he has little to gain
from this appeal, and much to lose (for
going to trial on even one count, or
frivolously denying relevant conduct
during resentencing, could cost him his
reduction for acceptance of
responsibility). Nothing in any of Knox’s
filings hints that he wants all three
guilty pleas vacated. His filings do not
imply that he was ignorant of his right
to plead not guilty or that details about
supervised release entered into his
decision to plead guilty. As a result his
lawyer had no duty to explore legal
theories that might have been put to use
in quest of that goal.
Counsel’s motion to withdraw is granted,
Knox’s motions for appointment of a
different lawyer are denied, and the
appeal is dismissed as frivolous.
RIPPLE, Circuit Judge, dissenting. I
cannot join in my colleagues’ decision to
accept the Anders brief submitted by
counsel, to permit counsel to withdraw
and to dismiss the appeal as frivolous.
At this early stage of the proceedings,
our first task is to determine whether we
ought to permit counsel to withdraw and
then dismiss the appeal as frivolous. In
my view, this Anders brief is inadequate.
Despite counsel’s assurances that no Rule
11 violation occurred during the plea
colloquy, it is clear that the district
court did not advise Mr. Knox that he had
the right to plead not guilty, as
required by Rule 11(c)(3), nor did it
inform him of the consequences for
violating the terms of his supervised
release, as required by Rule 11(c)(1).
One of the reasons that defense counsel
is required to submit an Anders brief
rather than a mere "no-merit letter" is
that an Anders brief assists the
appellate court in its review "because of
the ready references not only to the rec
ord, but also to the legal authorities as
furnished by counsel." Anders v.
California, 386 U.S. 738, 745 (1967). In
this way, the confidence of the appellate
court that the appeal raises no non-
frivolous issues and the confidence of
the indigent defendant that his case
received the "advocacy which a non-
indigent defendant is able to obtain" are
assured. Id. at 745. Here, counsel has
failed to notice the Rule 11 violations
and so has not advised this court of the
worth in appealing the matter. Counsel’s
brief, therefore, provides us with no
more assistance than the no-merit letter
rejected by the Supreme Court in Anders.
See Anders, 386 U.S. at 744-45 ("The no-
merit letter . . . affords neither the
client nor the court any aid.").
In dismissing this appeal, my colleagues
excuse the omission of counsel because
nothing suggests that Mr. Knox wants to
withdraw his guilty plea, and a
withdrawal of the plea may put Mr. Knox
in jeopardy of receiving a higher
sentence should he be convicted after a
trial. This conclusion, in my view, is
premature at best. If counsel did not
recognize the infirmities of the Rule 11
colloquy, it is apparent that he also did
not apprise his client of these matters
and of the consequences of raising the
error on appeal. After receiving such
advice, the defendant may well determine,
for the reasons given by my colleagues,
not to raise the matter. However, this
court ought not express a view on the
advisability of raising the issue or on
the merits of the issue until we can be
certain that the defendant, with the
advice of counsel, has considered it. As
has been the practice of this court, we
should order counsel for Mr. Knox to
evaluate the Rule 11 violations and to
determine whether it indeed would be
frivolous to appeal the issue. For
instance, in United States v. Graves, 98
F.3d 258, 259 (7th Cir. 1996), after
counsel had submitted an Anders brief re
citing that there had been no violations
of Rule 11, we ordered counsel to
consider two specific Rule 11 issues--the
district court’s failure to advise the
defendant that any statement he made at
the plea hearing could be made the basis
of a perjury prosecution of him, and the
misrepresentation of the availability of
good-time credits for the offense. See
also United States v. Robinson, 96 F.3d
246, 254 (7th Cir. 1996) (granting
counsel’s motion to withdraw, after
counsel filed an Anders brief submitting
that there had been no Rule 11 violation,
but appointing new counsel to address the
issue of whether the government’s proffer
of proof in support of the guilty plea
was sufficient); United States v.
Tuangmaneeratmun, 925 F.2d 797, 800 (5th
Cir. 1991) (after counsel filed an Anders
brief stating that the district court had
accepted the plea in full conformity with
the requirements of Rule 11, the court
directed counsel to address the district
court’s failure to explain the effects of
supervised release).
In short, we ought to proceed at a
measured pace in adjudicating this case.
We ought not take definitive action on
this appeal until we can be confident
that counsel has evaluated thoroughly the
case and made with his client a careful
determination as to whether to raise the
adequacy of the Rule 11 determination.