United States v. Washington, Carvonta ( 2007 )

NONPRECEDENTIAL DISPOSITION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 February 21, 2007
Decided February 22, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1871
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 3:05CR30119-001-GPM
CARVONTAE D. WASHINGTON,
Defendant-Appellant. G. Patrick Murphy,
Chief Judge.
ORDER
Carvontae Washington pleaded guilty to two counts of possessing and
distributing crack cocaine. See 21 U.S.C. § 841(a)(1). The district court sentenced
him to concurrent terms of 135 months’ imprisonment and four years’ supervised
release. Washington filed a notice of appeal, but appointed counsel now moves to
withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). For his part, Washington accepted our invitation to
respond to his lawyer’s motion. See Cir. R. 51(b). Because counsel’s supporting
brief is facially adequate, we limit our review to the potential issues identified by
counsel and Washington. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.
1997).
No. 06-1871 Page 2
Counsel informs us that Washington wants his guilty pleas set aside, and so
counsel first considers whether Washington could argue that his pleas were
involuntary. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). But
Washington did not move to withdraw his guilty pleas in the district court.
Consequently, we would review the district court’s compliance with Federal Rule of
Criminal Procedure 11 for plain error. United States v. Vonn, 535 U.S. 55, 59
(2002). A magistrate judge engaged in an extensive plea colloquy with Washington
before recommending that the district court accept his guilty pleas. See S.D. Ill. R.
72.1(b)(2). The magistrate judge explained the charges, the right to plead not
guilty, the trial rights Washington would waive by pleading guilty, and the
minimum and maximum terms of imprisonment and supervised release he faced for
each count. See Fed. R. Crim. P. 11(b)(1). Washington acknowledged his
understanding of the district court’s address at each stage of the colloquy. We
therefore agree with counsel that it would be frivolous for Washington to challenge
on appeal the voluntariness of his guilty pleas.
Counsel next considers whether Washington could argue that his offense
level was improperly increased by two levels for possessing a gun during the drug
transactions underlying his convictions. See U.S.S.G. § 2D1.1(b)(1). The guidelines
mandate the two-level increase if a dangerous weapon was present during the
offense or during relevant conduct, “unless it is clearly improbable that the weapon
was connected with the offense.” Id. cmt. n.3; see United States v. Johnson, 227
F.3d 807, 814 (7th Cir. 2000). At sentencing the government presented evidence
that Washington twice sold crack to a confidential informant from the front porch of
a home he shared with his mother and siblings. Two days after the second
transaction, police executed a search warrant at the house and recovered a
semiautomatic handgun and two loaded magazines from a cabinet in the home’s
front entryway. Cash (including marked bills from a previous controlled buy) and
additional drugs were found elsewhere within the home. The parties stipulated
that the gun belonged to Washington’s brother, but Washington denied that it was
connected to his drug transactions. The district court nevertheless concluded that it
was not clearly improbable that the gun was connected with Washington’s drug
crimes.
In response to counsel’s Anders brief, Washington asserts that the court
erroneously shifted the burden to him to prove that he did not possess the gun. For
purposes of U.S.S.G. § 2D1.1(b)(1), the government bears the initial burden of
proving “by a preponderance of the evidence that the defendant possessed a weapon
in a place where drugs were present.” Johnson, 227 F.3d at 814; United States v.
Tyler, 125 F.3d 1119, 1122 (7th Cir. 1997). The “burden of persuasion then falls
upon the defendant to demonstrate that it is ‘clearly improbable’ that the weapon
was connected with” his offense. Johnson, 227 F.3d at 814; Tyler, 125 F.3d at 1122.
At sentencing the government informed the court that “the burden is on the
No. 06-1871 Page 3
defendant to show by clear and convincing evidence” that he did not possess the gun
in connection with the drug sales. Although this statement is not a perfect
recitation of the standard, it is not inaccurate. And any confusion caused by the
government’s statement is irrelevant because, on the evidence presented by the
government and Washington, the district court was required to assess the two-level
increase. See, e.g., United States v. Corral, 324 F.3d 866, 872-74 (7th Cir. 2003)
(finding § 2D1.1(b)(1) increase appropriate where defendant had constructive
possession of gun found in house where drugs also found). Thus we agree with
counsel that any challenge to the court’s calculation of Washington’s offense level on
this ground would be frivolous.
Counsel also considers two challenges to the district court’s calculation of
Washington’s criminal-history category. First, he examines whether Washington
could argue that the district court improperly assessed one criminal-history point
for a 2002 conviction for driving without insurance. Counsel correctly recognizes,
however, that the district court was bound by our decision in United States v. Boyd,
146 F.3d 499, 501-02 (7th Cir. 1998), and thus was required to assess one point for
that conviction. Second, counsel explores whether Washington could argue that the
district court erred when it assessed two criminal-history points because, at the
time he committed the offenses giving rise to his federal convictions, he was serving
a six-month term of supervised release resulting from a state conviction. The
guidelines instruct that, under U.S.S.G. § 4A1.1(d), a sentencing court must add
two points to a defendant’s criminal-history score “if the defendant committed any
part of the instant offense . . . while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1(d) cmt. n.4. Accordingly, we agree with counsel that it
would be frivolous for Washington to challenge the calculation of his
criminal-history score on these grounds.
Washington asks us to consider whether he could argue that his guidelines
range was improperly calculated because his base offense level reflects a drug
quantity greater than 50 grams when, he says, he pleaded guilty to less than 50
grams. But this argument is frivolous because Washington’s presentence
investigation report disclosed that the two transactions giving rise to his convictions
involved 26.3 grams of crack on one occasion and 23.8 grams on the other.
Finally, counsel considers whether Washington could argue that his overall
prison term is unreasonable. We have held that a sentence within a properly
calculated guidelines range is presumptively reasonable. United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). Cf. Rita v. United States, 127 S. Ct. 551 (2006)
(granting certiorari to decide whether affording presumption of reasonableness to
sentence within guidelines range is consistent with United States v. Booker, 543
No. 06-1871 Page 4
U.S. 220 (2005)). The guidelines range calculated by the district court, after
granting considerable concessions to Washington on his relevant conduct
calculation, yielded an imprisonment range of 135 to 168 months. In choosing to
impose a sentence at the bottom of that range, the court considered the factors in 18
U.S.C. § 3553(a), including Washington’s prior criminal conduct and the need for
punishment and deterrence. And neither Washington nor his counsel have
identified information in the record that would have compelled a lower sentence.
We therefore agree with counsel that this potential claim would be frivolous.
Counsel’s motion to withdraw is GRANTED, and given our agreement with
counsel that this appeal is frivolous, Washington’s motion for substitute counsel is
DENIED. The appeal is DISMISSED.