United States v. Joseph Anderson , 484 F. App'x 65 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 June 27, 2012
Decided June 28, 2012
Before
JOEL L. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 11-1862 & 11-2234
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 10 CR 50040
JOSEPH D. ANDERSON and
MONARE R. MOORE, Frederick J. Kapala,
Defendants-Appellants. Judge.
ORDER
Joseph Anderson and Monare Moore, while masked and carrying loaded guns, stole
about $25,000 from a bank in Orangeville, Illinois, but were caught after a car chase that
ended in Wisconsin when they ran out of gas. Both men pleaded guilty to armed bank
robbery, 18 U.S.C. § 2113(a), (d), and brandishing a firearm during a crime of violence,
id. § 924(c)(1)(A)(ii). They also admitted robbing a bank in New Milford, Illinois, eight
months earlier. In applying the sentencing guidelines, the district court added 4 offense
levels for each defendant because they had facilitated the New Milford robbery by
abducting the bank manager and forcing him at gunpoint to unlock the building and the
vault. See U.S.S.G. § 2B3.1(b)(4)(A). For the robbery, Anderson was sentenced within his
guidelines imprisonment range to 200 months, and Moore was sentenced at the low end of
his range to 151 months. Each defendant also received a consecutive 84 months on the
Nos. 11-1862 & 11-2234 Page 2
§ 924(c) count, the statutory minimum. The defendants filed notices of appeal, and we
consolidated their cases. Their appointed attorneys assert that the appeals are frivolous and
seek to withdraw. See Anders v. California, 386 U.S. 738 (1967). Neither Anderson nor Moore
has filed a response, though Anderson has requested the appointment of new counsel.
See C IR. R. 51(b). We confine our review to the potential issues identified in counsel’s
facially adequate briefs. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
We begin with Anderson. His counsel tells us that “Anderson’s knowing and
voluntary plea eliminated all but sentencing issues from the universe of potential issues to
be raised on appeal.” That may be true, but we cannot tell whether counsel evaluated the
adequacy of the plea colloquy, see FED. R. C RIM . P. 11(b), or even discussed with Anderson
whether he wants to challenge his guilty pleas, see United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). Counsel should have done more to explain his conclusion, yet we still are
able to see from his Anders submission and from the record on appeal that a challenge to
Anderson’s guilty pleas would be frivolous. See United States v. Konczak, No. 11-2969, 2012
U.S. App. LEXIS 8448, at *3 (7th Cir. Apr. 26, 2012). The district court conducted a thorough
plea colloquy, except that the court did not explain that the right to counsel extended to the
entire proceeding and not just trial. See FED. R. CRIM . P. 11(b)(1)(D). This omission did not
affect Anderson’s substantial rights, however, because he had been informed at his initial
appearance that he had a right to counsel at all stages of the proceeding and had been
represented by appointed counsel throughout his case. See United States v. Lovett, 844 F.2d
487, 491–92 (7th Cir. 1988).
Counsel next considers whether Anderson could challenge his prison terms as
unreasonable. Both terms are within the guidelines ranges and thus are entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). Counsel has not identified any reason to set
aside that presumption, nor can we. Looking to the factors in 18 U.S.C. § 3553(a), the
district court explained that a within-guidelines sentence was necessary to address
Anderson’s recidivism and history of violent behavior and noted that he received no
criminal history points for some of the crimes he had committed.
Last, counsel, who also represented Anderson in the district court, considers
whether Anderson could challenge counsel’s performance. Although counsel has not
identified any aspect of his own performance that Anderson might assert was deficient, a
lawyer cannot be expected to make an issue of his own performance on direct appeal.
See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). And if there is a ground for
questioning the quality of counsel’s assistance, that claim would be more appropriately
Nos. 11-1862 & 11-2234 Page 3
pursued in a collateral proceeding. Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Persfull, 660 F.3d 286, 299 (7th Cir. 2011).
As for Moore, his lawyer did consult with him, and Moore does not want his guilty
pleas set aside. Counsel thus appropriately omits from his brief any discussion about the
adequacy of the plea colloquy or the voluntariness of the guilty pleas. See Knox, 287 F.3d at671–72.
Moore’s counsel first considers whether to argue that Moore should not have
received a 4-level upward adjustment for abducting the New Milford bank manager to
facilitate that robbery. See U.S.S.G. § 2B3.1(b)(4)(A). An abduction occurs when the
defendant forces a victim to accompany him to a different location. Id. §§ 1B1.1 cmt. n.1(A),
2B3.1 cmt. backg’d. In United States v. Davis, 48 F.3d 277, 279 (7th Cir. 1995), we determined
that this adjustment applied—in circumstances indistinguishable from Moore’s—when the
defendant forced a bank employee at gunpoint to open a locked outside door and
accompany him into and around the bank. Id. at 278–79. The adjustment has been applied
in similar circumstances as well. See United States v. Taylor, 128 F.3d 1105, 1110–11 (7th Cir.
1997) (applying adjustment when defendants had dragged bank teller by her hair from
parking lot into bank); United States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2002) (concluding
that forcing store employee from store into parking lot was abduction); United States v.
Elkins, 16 F.3d 952, 953 (8th Cir. 1994) (applying adjustment when defendant had forced
patron at knife point out of bank and to parking lot). Counsel is correct that a challenge to
this adjustment would be frivolous.
Last, counsel considers whether Moore could challenge his prison terms as
unreasonable. Moore’s sentence for the bank robbery is at the bottom of the guidelines
range, and his sentence for the gun count is the statutory minimum. A presumption of
reasonableness applies. See Rita, 551 U.S. at 347; Pape, 601 F.3d at 746. Counsel has not
identified any reason to set aside this presumption, nor have we. The district court
meaningfully discussed the factors in 18 U.S.C. § 3553(a), including Moore’s recidivism and
the need to protect the public.
The motions to withdraw are GRANTED, and the appeals are DISMISSED.
Because we agree with Anderson’s counsel that an appeal would be frivolous, Anderson’s
request for new counsel is DENIED.