United States v. Duane Moore , 502 F. App'x 602 ( 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NONPRECEDENTIAL DISPOSITION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 March 15, 2013
Decided March 19, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12-2127 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Southern District of Illinois.
Plaintiff-Appellee,
v. No. 3:11-CR-30188-001-DRH
David R. Herndon, Chief
DUANE L. MOORE, Judge.
Defendant-Appellant.
Order
Duane Moore pleaded guilty to distributing cocaine. 21 U.S.C. §841(a)(1). The prose-
cutor filed an information charging him with three prior felony convictions, which ex-
posed him to a maximum sentence of 30 years. 21 U.S.C. §§ 841(b)(1)(C), 851. The dis-
trict court sentenced him to 216 months. He appealed, but his appellate lawyer has filed
an Anders brief, concluding that all potential issues are frivolous.
Although Moore has not replied to counsel’s submission, see Circuit Rule 51(b), he
has asked his lawyer to challenge the recidivism enhancement, which affected his sen-
tence because he was treated as a career offender, see U.S.S.G. §4B1.1(b), and the career-
offender guideline depends on the statutory maximum. Moore contends that it was er-
ror to set his maximum term at 30 years because that possibility was not mentioned in
the indictment. But §851 does not require such a mention; all it requires is an infor-
mation filed “before entry of a plea of guilty.” That occurred, and effect of the infor-
mation was discussed in open court before Moore entered his plea.
No. 12-2127 Page 2
Counsel observes that one of Moore’s convictions (in 2001) might be excludable be-
cause it did not lead to imprisonment and occurred more than ten years before he
committed the federal offense. But two other convictions (in 2002 and 2009) count, and
under §841(b)(1)(C) even one is enough to increase the maximum sentence. The career-
offender Guideline says that two prior convictions for drug offenses or crimes of vio-
lence suffice. So there is no colorable ground on which to contest the career-offender
enhancement. And, since Moore’s sentence lies within a properly calculated range, it is
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007). Counsel
rightly concludes that the district judge could not plausibly be accused of ignoring or
misapplying the statutory factors. See 18 U.S.C. §3553(a).
There remains the question whether Moore could challenge the guilty plea itself.
Moore told counsel that he does not want to withdraw his plea, but it is unclear wheth-
er Moore understands that the plea is potentially vulnerable to a legal challenge. Moore
changed his plea to guilty before a magistrate judge rather than a district judge. Alt-
hough Moore expressly consented to have a non-Article-III officer take his plea, as a lo-
cal rule authorizes (C.D. Ill. R. 72.1), it is an open question in this circuit whether that
procedure is proper. Fed. R. Crim. P. 59(b) allows a district court to refer “dispositive”
matters to a magistrate judge but requires review by the district judge afterward. Ac-
ceptance of a guilty plea may well be “dispositive” for this purpose.
Before the adoption of Rule 59(b) in 2005, several circuits had held that a magistrate
judge may accept a plea with all parties’ consent. See United States v. Woodward, 387 F.3d
1329, 1331–34 (11th Cir. 2004); United States v. Osborne, 345 F.3d 281, 285–90 (4th Cir.
2003); United States v. Reyna-Tapia, 328 F.3d 1114, 1118–22 (9th Cir. 2003) (en banc); Unit-
ed States v. Torres, 258 F.3d 791, 794–96 (8th Cir. 2001); United States v. Dees, 125 F.3d 261,
264–68 (5th Cir. 1997); United States v. Ciapponi, 77 F.3d 1247, 1249–52 (10th Cir. 1996);
United States v. Williams, 23 F.3d 629, 631–35 (2d Cir. 1994). See generally Peretz v. United
States, 501 U.S. 923 (1991) (discussing which duties may be assigned to magistrate judg-
es in criminal prosecutions). These decisions differ on whether the magistrate judge’s
decision is conclusive or is subject to review, on the record, by the district judge. None
of these post-dates the 2005 amendment to Rule 59—and the amended Rule 59 itself is
silent about whether the distinction between dispositive and nondispositive referrals
applies to all matters, or only to matters referred without the parties’ consent.
If Moore remains content with his plea, it would be an injustice to expose him to the
risk of losing the benefit of his plea bargain just because of some legal uncertainty about
the procedure the district court used. But Moore may not have appreciated that he has
at least one non-frivolous means of contesting his plea. Before acting on counsel’s An-
ders brief, we request counsel to discuss this subject with their client and ask Moore to
choose whether to ask for a remand on this subject. If Moore remains content with his
plea, counsel should so inform us; otherwise counsel should file a brief addressing this
non-frivolous issue.