United States v. Dewitt Fife ( 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NONPRECEDENTIAL DISPOSITION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 September 26, 2012
Decided September 26, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-2593
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 08-CR-242
DEWITT H. FIFE, Charles N. Clevert, Jr.,
Defendant-Appellant. Chief Judge.
ORDER
Dewitt Fife is before this court a second time. In 2008 he pleaded guilty to
possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and despite past convictions in
Illinois for burglary, arson, and armed violence, the district court concluded that Fife was
not subject to a minimum prison term of 15 years under the Armed Career Criminal Act,
see id. § 924(e). The court reasoned that armed violence, see 720 ILCS 5/33A–2, is not a
violent felony as defined in § 924(c)(2)(B), and thus Fife did not have three qualifying
convictions and was not an armed career criminal, see 18 U.S.C. § 924(e)(1). On the
government’s appeal, however, we concluded that armed violence, under Illinois law, is a
violent felony. We vacated the 48-month prison term imposed by the district court and
remanded with instructions to resentence Fife as an armed career criminal. United States v.
Fife, 624 F.3d 441, 449 (7th Cir. 2010).
No. 11-2593 Page 2
In his first appeal Fife had not challenged the district court’s assessment that
burglary and arson are violent felonies, but at resentencing Fife asserted that he was
convicted of burglary without a lawyer and thus the conviction was unconstitutional and
could not count as a predicate conviction under the ACCA. The district court noted that,
although Fife had challenged the use of his burglary conviction on a different ground
during his first sentencing, he did not contend that the conviction had been uncounseled
and thus waived that claim. The court concluded that Fife is an armed career criminal and
sentenced him to the statutory minimum.
Fife then filed this second appeal, but his appellate counsel has concluded that the
case is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Fife
has filed a response opposing counsel’s motion. CIR. R. 51(b). We confine our review to
potential issues identified in counsel’s facially adequate brief and in Fife’s response.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel recognizes that the scope of our earlier remand was narrow, and thus the
range of possible claims in this appeal is narrow as well. Fife cannot challenge the guilty
plea, for example, because in the prior appeal he passed over the opportunity to dispute the
voluntariness of his plea or the adequacy of the plea colloquy. See United States v. Husband,
312 F.3d 247, 250–51 (7th Cir. 2002); United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001).
Nor can Fife argue again that the Illinois offense of armed violence is not a violent felony,
since issues resolved against him in the prior appeal cannot be relitigated. See Husband, 312
F.3d at 251; Morris, 259 F.3d at 898. Moreover, the prison sentence imposed on remand is
the statutory minimum, so even possible claims about the application of the sentencing
guidelines or the reasonableness of Fife’s sentence would necessarily be frivolous.
See United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006); United States v. Farrior, 535 F.3d
210, 224 (4th Cir. 2008); United States v. Samuels, 543 F.3d 1013, 1021 (8th Cir. 2008).
That leaves only Fife’s contention at resentencing that his burglary conviction was
uncounseled and thus invalid, but counsel correctly rejects this potential argument as
frivolous. During his initial sentencing, Fife did not challenge his burglary conviction based
on lack of counsel, nor did he dispute on appeal the district court’s conclusion that the
conviction was for a violent felony. As the district court suspected, then, the question need
not have been addressed on remand. See Husband, 312 F.3d at 251. In any event, the judge
concluded that Fife had counsel when he was convicted of burglary, and an appellate claim
challenging that finding as clearly erroneous would be frivolous. See United States v. Hach,
162 F.3d 937, 949–50 (7th Cir. 1998).
No. 11-2593 Page 3
Fife suggests three potential arguments in his Rule 51(b) response: whether the
district court impermissibly referred to the state complaint in deciding if his conviction for
armed violence is a violent felony, whether the reliance on his prior convictions to increase
his sentence violated the Double Jeopardy Clause, and whether sentencing him as an
armed career criminal without alleging his prior convictions in the indictment and proving
them to a jury beyond a reasonable doubt violated the rule of Apprendi v. New Jersey, 530
U.S. 466 (2000). Each of these arguments would be frivolous. We decided in Fife’s last
appeal that his conviction for armed violence is a conviction for a violent felony. And
recidivism enhancements are not only consistent with the Double Jeopardy Clause,
see Witte v. United States, 515 U.S. 389, 400 (1995); Moore v. State of Missouri, 159 U.S. 673, 677
(1895), but also exempt from the rule of Apprendi, see Almendarez-Torres v. United States, 523
U.S. 224 (1998).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.