United States v. Darnell Moon , 384 F. App'x 517 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 July 13, 2010
Decided July 16, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-4029
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 09-CR-135-01
DARNELL MOON, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
While serving a federal prison sentence for bank robbery, Darnell Moon prepared 26
fraudulent income tax returns claiming that other inmates collectively were owed nearly
$55,000 in refunds. After the scheme was detected, Moon waived indictment and pleaded
guilty to an Information charging him with presenting a false claim to the Internal Revenue
Service. See 18 U.S.C. § 287. The district court sentenced Moon to 14 months’
imprisonment to follow his sentence for bank robbery. Moon appeals, but his appointed
lawyer seeks to withdraw because he cannot identify any nonfrivolous ground for appeal.
See Anders v. California, 386 U.S. 738 (1967). Moon has not responded to counsel’s
submission. See C IR. R. 51(b). We limit our review to the potential issues discussed in
No. 09-4029 Page 2
counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
Counsel begins by considering whether Moon could challenge the adequacy of the
plea colloquy or the voluntariness of his guilty plea. Counsel has not told us that Moon
wants his guilty plea set aside, but we infer that he does from counsel’s presentation.
See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002). Because Moon did not move
to withdraw his guilty plea in the district court, our review would be for plain error only.
See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th
Cir. 2008). Counsel identifies only one omission during the plea colloquy: the district court
did not tell Moon that false statements made under oath could be used against him in a
prosecution for perjury. See FED. R. C RIM. P. 11(b)(1)(A). Counsel notes that the oath Moon
took was administered but not transcribed. But even so, Moon has suffered no injury from
the omitted warning because there is no current or prospective prosecution against him for
perjury. See United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003); United States v. Graves,
98 F.3d 258, 259 (7th Cir. 1996). Thus, any challenge to the adequacy of the plea colloquy
would be frivolous.
Counsel next evaluates whether Moon could argue that the district court should
have discharged his appointed lawyer (who continues to represent Moon here) and
substituted counsel of Moon’s choosing. The district court already had agreed to one
change of counsel but then declined to make a second change when Moon complained that
the new lawyer was not able to predict his guidelines imprisonment range with certainty.
But all of this came before Moon had even been charged, and by pleading guilty
unconditionally he waived any challenge to events that preceded the plea. See United States
v. Campbell, 324 F.3d 497, 499 (7th Cir. 2003). Any contention about the court’s refusal to
substitute a third lawyer would thus be frivolous. See United States v. Foreman, 329 F.3d
1037, 1038-39 (9th Cir. 2003).
Finally, counsel considers whether Moon could contend that his prison sentence is
unreasonable because of its length or consecutive character. Regarding the latter point, the
sentencing guidelines favor consecutive sentences for defendants who commit crimes while
serving a term of imprisonment. See U.S.S.G. § 5G1.3(a); United States v. Dote, 328 F.3d 919,
923 n.2 (7th Cir. 2003); United States v. Schaefer, 107 F.3d 1280, 1286 (7th Cir. 1997). Counsel
has not identified any reason why a consecutive sentence would be inappropriate, so any
argument regarding this aspect of Moon’s sentence would be frivolous.
As for the length of the new prison term, counsel represents that the sentence falls
within the properly calculated guidelines range and thus would be presumed reasonable.
No. 09-4029 Page 3
See Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Liddell, 543 F.3d 877, 885
(7th Cir. 2008). Counsel is mistaken about the guidelines range, but correct that a
reasonableness challenge would be frivolous. The district court calculated the
imprisonment range using U.S.S.G. § 2B1.1, and although that Chapter 2 guideline applies
to most violations of 18 U.S.C. § 287, a cross-reference directs that U.S.S.G. § 2T1.1 be used
when the underlying false claim relates to a tax return, see U.S.S.G. § 2B1.1(c)(3); United
States v. Brisson, 448 F.3d 989, 991-92 (7th Cir. 2006). But this error was harmless because
the overlooked cross-reference would have yielded a higher imprisonment range. In
applying § 2B1.1 the district court assigned Moon a base offense level of 6 and added 6
levels because the intended loss exceeded $30,000. See U.S.S.G. § 2B1.1(a)(2), (b)(1)(D). The
court then awarded Moon two points for acceptance of responsibility, see id. § 3E.1.1(a), to
arrive at a total offense level of 10. That number, paired with Moon’s criminal history
category of III, yielded an apparent range of 10 to 16 months’ imprisonment. But § 2T1.1
would have resulted in a total offense level of 12, see id. §§ 2T1.1(a)(1), 2T4.1(E), 3E1.1(a),
and a corresponding imprisonment range of 15 to 21 months. Moon’s 14-month prison
term is below this guidelines range, and because counsel is unable to give us a basis to
conclude that the sentence is unreasonable, see United States v. Jackson, 598 F.3d 340, 345 (7th
Cir. 2010); Liddell, 543 F.3d at 885, any challenge to its length would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.