United States v. Corey Webster ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1148
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C OREY W EBSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-CR-111-C-01—Barbara B. Crabb, Judge.
S UBMITTED N OVEMBER 17, 2010—D ECIDED D ECEMBER 2, 2010
Before C OFFEY, F LAUM, and R IPPLE, Circuit Judges.
P ER C URIAM. Corey Webster pleaded guilty to distrib-
uting heroin, see 21 U.S.C. § 841(a)(1), after making a
single sale in January 2008. Prior to the plea colloquy, the
government had filed an Information to enhance the
maximum prison term from 20 to 30 years and the mini-
mum term of supervised release from 3 to 6 years based
on a “prior conviction” for a felony drug offense. See 21
U.S.C. §§ 841(b)(1)(C), 851(a). That prosecution by Wis-
2 No. 10-1148
consin authorities arose from another heroin sale occur-
ring several days before the current offense. Webster,
though, did not plead guilty in state court until Novem-
ber 2008—11 months after he committed the federal
crime—and in fact he was still waiting to be sentenced
in state court when the district court sentenced him in
this case to 151 months in prison and 6 years of super-
vised release.
Webster filed a notice of appeal, but his appointed
lawyer has concluded that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738(1967). Webster has not accepted our invitation to
respond to counsel’s motion. See C IR. R. 51(b). We limit
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).
Because Webster does not want his guilty plea vacated,
counsel correctly forgoes discussing the voluntariness
of the plea or the adequacy of the plea colloquy. See
United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel evaluates whether Webster could challenge
his enhanced term of supervised release term on the
ground that the government’s Information is invalid.
Under § 841(b)(1)(C) the enhanced penalties for other
drug convictions apply only if the defendant committed
the charged violation of § 841(a)(1) “after a prior convic-
tion for a felony drug conviction has become final.” As
counsel recognizes, however, the Information is invalid
because it relies on a conviction for a charge that
had not even been filed when Webster committed the
No. 10-1148 3
federal crime and, indeed, still was not final on the date
of the federal sentencing. Hence, it would appear that the
district court erred in concluding that Webster was
subject to a minimum of 6 years (and not 3) of super-
vised release. See 21 U.S.C. § 841(b)(1)(C).
Yet, counsel reasons that challenging the term of super-
vised release would be frivolous because § 851(c)(2)
provides that “[a]ny challenge to a prior conviction,
not raised by response to the information before an in-
creased sentence is imposed in reliance thereon, shall
be waived unless good cause be shown for failure to
make a timely challenge.” Otherwise, Webster’s silence
at sentencing might allow us to review the enhanced
minimum penalty for plain error. See United States v.
Lewis, 597 F.3d 1345, 1346-47 (7th Cir. 2010) (discussing
whether defendant had waived, or simply forfeited,
application of enhancement for prior conviction where
government failed to file Information under § 851 but
defendant had affirmatively conceded at sentencing that
enhanced minimum sentence applied). But because of
§ 851(c)(2), counsel contends that we cannot review the
issue at all. See United States v. Dickerson, 514 F.3d 60, 65
(1st Cir. 2008).
We have not addressed whether § 851(c)(2) blocks all
appellate challenges to convictions that were not
disputed in the district court, particularly those where,
as here, the defendant could argue that the government
relied on an offense that does not as a threshold matter
meet § 841’s definitional requirements for a “prior con-
viction.” The language of § 851(c)(2) makes evident that
4 No. 10-1148
a challenge to the validity of a prior conviction is waived
if no objection is made in the district court. See 21 U.S.C.
§ 851(c)(2); Custis v. United States, 511 U.S. 485, 491-92
(1994); United States v. Thomas, 348 F.3d 78, 88 (5th Cir.
2003) (applying § 851(c)(2) to waive defendant’s chal-
lenge to prior conviction on ground of ineffective assis-
tance of counsel). Other circuits have concluded, however
that challenges of any type can be waived, including
contentions that a conviction does not qualify as a “prior
conviction.” See United States v. Law, 528 F.3d 888, 908-09
(D.C. Cir. 2008) (relying on § 851(c)(2) in concluding that,
by not raising issue in district court, defendant waived
argument that prior drug convictions used for enhance-
ment were not felonies as required by § 841); United States
v. Brooks, 508 F.3d 1205, 1208-09 (9th Cir. 2007) (same);
United States v. VanDoren, 182 F.3d 1077, 1082-83 (9th Cir.
1999) (relying on § 851(c)(2) in concluding that, by not
raising issue in district court, defendant waived argu-
ment that drug conviction used for enhancement
was not “final” when federal offense was committed);
United States v. French, 974 F.2d 687, 696-97 (6th Cir.
1992) (same).
We do not have a decision on point, but that would not
keep us from concluding that any attempt by Webster to
skirt the effect of § 851(c)(2) would be frivolous. See
United States v. Lopez-Flores, 275 F.3d 661, 662-63 (7th Cir.
2001) (“[A] ground of appeal can be frivolous even if
there is no case on point—may be frivolous because, for
example, of the clarity of statutory language, or even as
a matter of common sense.”). Yet we need not go so far
in this case because, even if the potential issue is not
No. 10-1148 5
waived entirely by application of § 851(c)(2), the ques-
tion is nevertheless frivolous when scrutinized under the
plain-error standard. See Lewis, 597 F.3d at 1347. Under
that standard Webster would have to prove that the
district court committed an obvious error that affected
substantial rights and undermined the fairness, integrity,
or public reputation of judicial proceedings. See United
States v. Olano, 507 U.S. 725, 732-34, 736 (1993). The
error here is clear and affected Webster’s substantial
rights since it led the district court to conclude that the
minimum term of supervised release was six years, not
three. See United States v. Graham, 317 F.3d 262, 265, 273-
75 (D.C. Cir. 2003) (substantial rights affected where
district court sentenced defendant under wrong subsec-
tion of § 841, leading to higher minimum term of super-
vised release). But Webster would be unable to persuade
us that the court’s error in calculating the minimum
term of supervised release seriously affected the fair-
ness, integrity, or public reputation of the proceedings
and must be corrected. See United States v. Mouling, 557
F.3d 658, 667 (D.C. Cir. 2009). The district court’s error
here was inadvertent. As counsel notes, the district court
followed the procedural requirements of § 851 and gave
Webster notice of the proposed enhancement and an
opportunity to challenge the use of the state distribu-
tion offense for enhancement. See United States v. Lane,
591 F.3d 921, 927 (7th Cir. 2010). And since all violations
of § 841(a)(1) carry the potential for a life term of super-
vised release, see United States v. Pollard, 249 F.3d 738, 739
(8th Cir. 2001); United States v. Eng, 14 F.3d 165, 166, 168,
171-73 (2d Cir. 1994), the government’s use of Webster’s
6 No. 10-1148
state conviction for enhancement raised only the statu-
tory minimum term. With or without the Information
filed by the government, the district court could have
imposed a term of six years or longer. Thus, we agree
with appellate counsel that it would be frivolous to
argue that the sentencing court committed plain error.
Finally, counsel considers whether Webster might
argue that his prison sentence is unreasonably long. The
district court specifically evaluated Webster’s argu-
ments in mitigation and the relevant factors in 18 U.S.C.
§ 3553(a). Webster’s prison term is within the properly
calculated guidelines range and thus is presumptively
reasonable. See Rita v. United States, 551 U.S. 338, 350-51
(2007); United States v. Moreno-Padilla, 602 F.3d 802, 810
(7th Cir. 2010). Counsel has not identified a basis for
setting aside that presumption, nor have we. Accord-
ingly, we agree with counsel that a reasonableness chal-
lenge would be frivolous.
Counsel’s motion to withdraw is G RANTED and the
appeal is D ISMISSED.
12-2-10