United States v. Scott, Randy K. , 196 F. App'x 434 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 27, 2006
Decided September 28, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2095
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 05-CR-28
RANDY K. SCOTT, Rudolph T. Randa,
Defendant-Appellant. Chief Judge.
ORDER
Randy Scott pleaded guilty to conspiracy to distribute at least five kilograms
of cocaine and 50 grams or more of cocaine base. See 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A). He filed a notice of appeal, but his appointed counsel moves to withdraw,
stating that he cannot discover a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (967). Scott has accepted our invitation to respond to
counsel’s brief in support of his motion. See Cir. R. 51(b). We review only the
potential issues identified in counsel’s facially adequate brief and Scott’s response.
See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Scott was a member of an interstate drug-trafficking ring based in
Milwaukee, Wisconsin, until November 2004, when a co-conspirator shot him in the
head to settle a personal dispute and an unpaid drug debt. As the government put
it, that was the moment in which “Scott’s involvement in the conspiracy ended.” He
No. 06-2095 Page 2
survived the shooting, however, and was later apprehended by authorities and
charged with participating in the conspiracy. Scott eventually entered into a plea
agreement that called for the government to move for a prison sentence below the
otherwise-applicable 20-year statutory minimum (based upon the drug quantity and
his prior felony drug offense) in exchange for his substantial assistance in the
prosecution of his co-conspirators. See 18 U.S.C. § 3553(e). After accepting Scott’s
guilty plea and granting the government’s motion, the court calculated a guidelines
imprisonment range of 151 to 188 months. The court sentenced Scott to 156
months’ imprisonment and 10 years’ supervised release.
Counsel first examines in his Anders submission whether Scott could
challenge his guilty plea, and concludes that any such challenge would be frivolous.
Scott, to the contrary, asserts in his response that it would not be frivolous to
challenge the voluntariness of his plea because he was “coerced” by the prosecution
and his trial counsel into entering into the written plea agreement. But this
assertion is belied by what Scott stated both in the plea agreement and under oath
at his plea colloquy: that he actually committed the charged crime, that he received
no threats or promises which induced him to plead guilty, and that he was satisfied
with his trial counsel’s representation. We presume these statements are true, see
United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001); United States v. Malave,
22 F.3d 145, 148 (7th Cir. 1994), and Scott points to nothing in the record rebutting
this presumption. Moreover, to the extent that Scott would like to argue that his
attorney’s “coercion” amounted to constitutionally deficient representation, such an
argument is more appropriately raised in a collateral proceeding under 28 U.S.C.
§ 2255 where the record can be further developed. See Massaro v. United States,
538 U.S. 500, 504 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Scott alleges no other error stemming from his plea colloquy, and our review of the
record reveals that the district court substantially complied with Fed. R. Crim. P.
11 during the hearing. Counsel is thus correct that it would be frivolous to
challenge Scott’s guilty plea. See Schuh, 289 F.3d at 974-75.
Scott also suggests that he could challenge his conviction on the ground that
he was entrapped by law enforcement agents; specifically, Scott claims that a police
detective “persisted over a period of time in inducing and persuading me to commit
the crime in question.” However, Scott did not enter into a conditional guilty plea,
see Fed. R. Crim. P. 11(a)(2), and therefore waived all non-jurisdictional defects by
pleading guilty, see United States v. Rogers, 387 F.3d 925, 932 (7th Cir. 2004). And
in any event, Scott fails to point to any evidence in the record that supports an
entrapment defense; to the contrary, he admitted at sentencing that he joined the
drug conspiracy several months before having contact with any government agent
regarding the drug conspiracy. See United States v. Haddad, No. 05-3086, 2006
U.S. App. LEXIS 23413, at *12 (7th Cir. Sep. 14, 2006) (stating that to argue
entrapment defendant must point to evidence of “lack of predisposition . . . to
No. 06-2095 Page 3
engage in the crime”). And as the court noted at sentencing, whatever cooperation
Scott provided to authorities benefitted him in the form of the government’s
§ 3553(e) motion. Scott’s suggested entrapment argument accordingly would be
frivolous.
Finally, counsel contemplates arguing that the prison term imposed by the
district court is unreasonable, but correctly concludes that this contention would be
frivolous as well. The 156-month term is presumptively reasonable because it falls
within the properly calculated advisory guidelines range, so Scott would have to
establish that he rebutted that presumption by pointing to information that
compelled a lower sentence in light of the factors outlined in 18 U.S.C. § 3553(a).
See United States v. Lange, 445 F.3d 983, 987 (7th Cir. 2006); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Here, the district court considered
factors that supported a lower sentence, including Scott’s cooperation with the
authorities, his lack of a supportive family, and his positive behavior while in
custody awaiting trial. The court nevertheless concluded that a sentence within the
range was warranted because the drug-trafficking ring brought a substantial
amount of drugs into the community, see 18 U.S.C. § 3553(a)(2)(A), and because
Scott had previous drug and federal firearms convictions and admitted to using
drugs daily, see id. § 3553(a)(1). Counsel is unable to identify any other factors that
would have compelled a lower sentence.
We accordingly GRANT counsel’s motion to withdraw and DISMISS the
appeal.