United States v. Ezra Miranda ( 2013 )

NONPRECEDENTIAL DISPOSITION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 April 5, 2013
Decided April 5, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-2534
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 09-CR-95-BBC-01
EZRA MIRANDA, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
Ezra Miranda sold 4.5 ounces of cocaine to a confidential informant in a series of
controlled buys. He pleaded guilty to conspiring to distribute cocaine, 21 U.S.C. § 841(a)(1);
21 U.S.C. § 846. The district court adopted the probation officer’s guidelines calculations,
which yielded a sentence of 151 to 188 months’ imprisonment based in part on Miranda’s
status a career offender due to past convictions for battery and manufacturing or delivering
THC, see U.S.S.G. § 4B1.1(a). The court sentenced Miranda to only 120 months’
imprisonment, however, because these convictions were “less egregious than the usual
conduct of persons sentenced as career offenders.” Miranda filed a notice of appeal, but his
lawyer has concluded that the appeal is frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Miranda opposes his lawyer’s motion. See CIR. R. 51(b).
No. 12-2534 Page 2
We confine our review to the potential issues identified in counsel’s facially adequate brief
and Miranda’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first considers whether Miranda could challenge the adequacy of his plea
colloquy or the voluntariness of his guilty plea, but it is unclear whether counsel has
discussed such a challenge with Miranda. An attorney should not even explore arguments
under Federal Rule of Criminal Procedure 11 in an Anders brief without confirming that the
client wants to withdraw his guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002). Nevertheless, we need not reject counsel’s Anders submission because the
information included in his brief, Miranda’s response, and our review of the record satisfies
us that a challenge to the plea would be frivolous. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012). Counsel identifies no deficiency in the plea colloquy, and our review of
the transcript confirms that the district court substantially complied with the requirements
of Rule 11.
Counsel does consider whether Miranda could challenge his 120-month sentence as
unreasonable. As counsel recognizes, we would presume that Miranda’s below-guidelines
sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and counsel identifies no reason to disturb that
presumption. The district court adequately discussed the relevant sentencing factors under
18 U.S.C. § 3553(a), noting that Miranda had been undeterred by his two state sentences but
acknowledging that his crimes were less serious than those of other career offenders.
Counsel and Miranda also consider challenging Miranda’s classification as a career
offender. Miranda contends that the classification was unfounded because the battery
charge carried a maximum punishment of only 9 months. As counsel notes, however, the
battery charge carried a maximum penalty of greater than one year because it was charged
as a violation of Wisconsin’s habitual criminality statute. See WIS. STAT. § 939.62(1)(a);
United States v. Bissonette, 281 F.3d 645, 647 (7th Cir. 2002). Miranda also urges that the
THC-distribution conviction should have been expunged after he completed probation. But
his lawyer conceded at sentencing that Miranda “is a career offender because he does have
one drug sale predicate,” and thus Miranda waived any argument that he does not have
two felony convictions for drug crimes or crimes of violence. See United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000).
Miranda also proposes arguing that the court incorrectly found that his relevant
conduct involved almost 2 kilograms of cocaine. This argument would be frivolous,
however, because as a career offender Miranda’s sentence was based on the statutory
maximum for his offense of conviction, not the drug-quantity provisions of U.S.S.G.
§ 2D1.1. See U.S.S.G. § 4B1.1(b); United States v. Redmond, 667 F.3d 863, 872 (7th Cir. 2012).
No. 12-2534 Page 3
Counsel finally considers whether Miranda could raise a claim about the
performance of his trial counsel but correctly concludes that any such claim would best be
presented on collateral review, where the necessary record may be developed. See Massaro
v. 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.