NONPRECEDENTIAL DISPOSITION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 November 5, 2012
Decided January 31, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐3733
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:09CR40082‐002‐JPG
DEANDRE D. BROWN, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Deandre Brown pleaded guilty to two counts of conspiracy to distribute controlled
substances (heroin and cocaine),
21 U.S.C. § 846, and was sentenced to 262 months in
prison, the bottom of the calculated guideline range. Brown filed a notice of appeal, but his
appointed counsel has concluded that the appeal is frivolous and moves to withdraw under
Anders v. California,
386 U.S. 738 (1967). Brown opposes his lawyer’s motion. See Cir. R.
51(b). We limit our review to the potential issues identified by counsel’s facially adequate
brief and Brown’s response. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first considers whether Brown could challenge his 262‐month sentence.
Counsel correctly notes, however, that Brown withdrew the objections he had raised at
sentencing (to the presentence report’s relevant conduct findings and recommended
No. 11‐3733 Page 2
enhancement for firearm possession) and that the sentence was properly calculated. As
counsel also recognizes, we would presume Brown’s within‐guidelines sentence to be
reasonable, see Rita v. United States,
551 U.S. 338, 347 (2007), and counsel cannot identify any
reason to disturb that presumption. We note that the district court adequately evaluated the
factors listed in
18 U.S.C. § 3553(a), including Brown’s history and characteristics—noting
among other things his lengthy criminal record and need for medical care to treat his
cocaine and heroin addiction.
Counsel also relays that Brown told him that he did not wish to challenge his guilty
pleas, and so counsel properly omits from his brief any discussion of the plea colloquy or
the voluntariness of Brownʹs guilty pleas. See United States v. Konczak,
683 F.3d 348, 349 (7th
Cir. 2012); United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002). But Brown’s response
suggests that he now wishes to challenge the pleas on grounds that the district judge
violated Federal Rule of Criminal Procedure 11(c)(1) by participating in plea negotiations
with Brown’s attorney, the prosecutor, and Brown’s mother. We find nothing in the record
of this case to support the notion that this long‐experienced district judge played a role in
plea negotiations, and Brown does not point to any potential evidence of that in his
submission to this court. See United States v. Cannady,
283 F.3d 641, 647 (4th Cir. 2002)
(refusing to entertain Rule 11 judicial participation argument on direct appeal when record
did not show alleged communication between judge and government). If Brown wishes to
pursue this argument, it would be better addressed in a collateral proceeding so that a more
complete record could be developed. See Massaro v. United States,
538 U.S. 500, 504–05
(2003); Murchu v. United States,
926 F.2d 50, 56–57 (1st Cir. 1991) (reviewing denial of
collateral motion alleging off‐record judicial participation in plea negotiation).
Brown also proposes arguing that the court incorrectly held him accountable for
distributing 100 grams of heroin, while the presentence investigation report (adopted by the
court) assessed his conduct relevant to the offense at 84 grams. This argument is frivolous.
Not only did Brown at his change‐of‐plea hearing acknowledge a factual basis for 100
grams, but the district judge also made clear in the plea colloquy that he and the probation
officer would independently calculate the drug quantities. See United States v. Bowlin,
534
F.3d 654, 660 (7th Cir. 2008). In any event Brown’s advisory guideline range would have
been the same with or without inclusion of the heroin: the crack and powder cocaine
amounts were enough to reach his calculated base offense level, after the probation officer
had converted them into their marihuana equivalents for a total of more than 3,700
kilograms. See U.S.S.G. § 2D1.1(a)(1), (c), cmt. n.10(D).
Brown last proposes arguing that the district court should have given him the benefit
of the Fair Sentencing Act’s reduction of the disparity between crack and powder cocaine
sentences. Brown did in fact benefit from the Act, as it directed the United States Sentencing
No. 11‐3733 Page 3
Commission to promulgate amendments to the guidelines that lowered the base offense
level for crack cocaine offenses by two levels. See generally U.S.S.G. app. C, vol. III
(Amendment 748) (explaining amendments to § 2D1.1).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.
