United States v. Melvin Laws , 420 F. App'x 611 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 May 11, 2011
Decided May 11, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 10-2296
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Eastern District of Wisconsin.
v. No. 09-CR-104
MELVIN LAWS, C. N. Clevert, Jr.,
Defendant-Appellant. Chief Judge.
ORDER
Melvin Laws pleaded guilty to possessing 50 grams or more of crack cocaine with
intent to distribute, 21 U.S.C. § 841(a)(1), and was sentenced to 120 months’ imprisonment,
the mandatory minimum. See § 841(b)(1)(A). Laws filed a notice of appeal, but his appellate
counsel moves to withdraw because he cannot find any nonfrivolous ground for appeal. See
Anders v. California, 386 U.S. 738 (1967). Laws has responded to counsel’s Anders submission,
see CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially
adequate brief and in Laws’ response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2009).
Counsel first considers whether Laws could challenge the voluntariness of his guilty
plea, but concludes that any such challenge would be foreclosed by our decision in United
No. 10-2296 Page 2
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), because Laws does not seek to withdraw his
plea. However, Laws in his response asserts (without elaboration) that his plea was neither
voluntary nor knowing, and that he now wishes to withdraw it. Because Laws did not move
to withdraw his plea in the district court, our review would be for plain error only. See
United States v. Vonn, 535 U.S. 55, 63-64 (2002); United States v. Ali, 619 F.3d 713, 718-19 (7th
Cir. 2010). Our review of the record reflects that the district court substantially complied
with Federal Rule of Criminal Procedure 11(b) before accepting his plea. As counsel
observes, the court neglected to inform Laws of his right against compelled self-
incrimination, Rule 11(b)(1)(E), and that he was subject to a mandatory special assessment
of $100.00, Rule 11(b)(1)(L), but neither of these omissions affected Laws’ substantial rights,
see Rule 11(h); United States v. Brown, 571 F.3d 690, 693 (7th Cir. 2009), and moreover, each
was spelled out in the plea agreement. We also note that the court did not inform Laws of
his right to be represented by counsel, Rule 11(b)(1)(D), and of the government’s right to use
any statement made by Laws under oath in a prosecution for perjury, Rule 11(b)(1)(A). But
Laws could not have been prejudiced by these omissions because he presumably knew of
his right to counsel as he was represented by counsel during the colloquy, see United States
v. Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988), and there is no current or prospective
prosecution against him for perjury, see United States v. Blalock, 321 F.3d 686, 689 (7th Cir.
2003).
Counsel next turns to potential sentencing arguments and considers whether Laws
could challenge the district court’s assessment of two criminal history points under U.S.S.G.
§ 4A1.1(d) for possessing drugs while under a prior “criminal justice sentence.” The court
assessed the points because Laws committed his drug offense while subject to a deferred-
prosecution agreement for a forgery charge in Wisconsin state court. Counsel asks whether
Laws’ deferred prosecution could be characterized as not involving a criminal justice
sentence. We agree with counsel that such an argument would be frivolous. The guidelines
define a criminal justice sentence as a sentence countable under § 4A1.2 that has “a
custodial or supervisory component,” § 4A1.1(d) cmt. n.4, and § 4A1.2(f) counts
diversionary dispositions as prior sentences if they result from an admission of guilt. Laws’
deferred-prosecution agreement followed a guilty plea and an adjudication of guilt and
placed him under the court’s supervision; the agreement thus qualifies as a criminal justice
sentence. See United States v. Sanchez, 507 F.3d 532, 537-38 (7th Cir. 2007); United States v.
Jones, 448 F.3d 958, 960 (7th Cir. 2006); see also United States v. Martinez-Melgar, 591 F.3d 733,
737 (4th Cir. 2010); United States v. Spikes, 543 F.3d 1021, 1024-25 (8th Cir. 2008).
Counsel next considers whether Laws could challenge his sentence because the
district court sentenced him using the 2008 edition of the Guidelines Manual rather than the
2009 edition in effect at the time of sentencing. But counsel properly regards this error as
No. 10-2296 Page 3
harmless because the applicable guidelines provisions remained unchanged between the
two editions. See United States v. Viemont, 91 F.3d 946, 948 n.4 (7th Cir. 1996).
Counsel also considers whether Laws’ sentence could be challenged as being
unreasonable, in violation of law, or a result of an improper application of the sentencing
guidelines. But Laws received the statutory-minimum sentence of 120 months, see 21 U.S.C.
§ 841(a)(1), and any challenge to his sentence on these bases would therefore be frivolous.
See United States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007).
Finally, Laws in his response expresses dissatisfaction with his trial counsel’s failure
to raise and argue dispositive motions that, he says, were well grounded in fact and law. To
the extent Laws suggests that his trial counsel was ineffective, the claim is best pursued in a
collateral proceeding in which the record can be more fully developed. See United States v.
Harris, 394 F.3d 543, 557-58 (7th Cir. 2005) (citing Massaro v. United States, 538 U.S. 500, 504-
05 (2003)).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.