United States v. James Briscoe ( 2022 )

NONPRECEDENTIAL DISPOSITION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 July 20, 2022
Decided July 20, 2022
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2831
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:19CR00374-001
JAMES BRISCOE, Tanya Walton Pratt,
Defendant-Appellant. Chief Judge.
ORDER
James Briscoe supplied methamphetamine to a web of drug dealers in Indiana.
He pleaded guilty to conspiring to possess with intent to distribute, and distributing,
500 grams or more of methamphetamine, as well as unlawfully using a communication
facility to facilitate his crimes. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 843(b), 846. The
district court sentenced Briscoe to 276 months in prison, plus 10 years of supervised
release. Briscoe filed a notice of appeal, but his appointed counsel asserts that the
appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Briscoe has not responded to the motion. See CIR. R. 51(b). Counsel’s brief explains the
nature of the case and addresses the potential issues that an appeal of this kind might
No. 21-2831 Page 2
involve. Because the analysis in the brief appears thorough, we limit our review to the
subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first informs us that she consulted with Briscoe about the potential risks
of challenging his plea, and that he wishes to do so regardless. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012). But she properly concludes that any potential
challenge to Briscoe’s unconditional guilty plea would be frivolous. Because Briscoe did
not move in the district court to withdraw his plea, we would review such an argument
now only for plain error. United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013).
This sort of challenge would necessarily fail here because the plea hearing substantially
complied with Rule 11 of the Federal Rules of Criminal Procedure. Id. In a thorough
colloquy, Briscoe confirmed with the court his competency and desire to plead guilty
without an agreement, reviewed the rights he would forgo by doing so, and
acknowledged the potential penalties associated with his offenses. See FED. R. CRIM. P.
11(b). Then, Briscoe addressed the court and agreed that the government’s summary of
his interactions with co-conspirators and their movement of methamphetamine was
accurate. These sworn statements are presumed to be true, United States v. Graf, 827 F.3d
581, 584 (7th Cir. 2016), and would foreclose any attempt to withdraw the plea on
appeal.
Next, counsel considers, and rejects, potential challenges to Briscoe’s sentence.
As counsel explains, Briscoe’s base offense level was correctly calculated at 36 because
he admitted at the plea colloquy that he distributed between 1.5 and 4.5 kilograms of
methamphetamine. U.S.S.G. § 2D1.1(a)(5), (c)(2). Likewise, we would find no error with
Briscoe’s total offense level of 35, which the court based on a two-level firearms
enhancement and a three-level reduction for acceptance of responsibility. See U.S.S.G.
§§ 2D1.1(b)(1), 3E1.1(a)–(b). Although Briscoe denied possessing a firearm himself, he
did not dispute that he and his co-conspirators discussed their use of guns for
protection and to collect debts on numerous occasions during their drug conspiracy,
and this evidence of his knowledge alone would suffice. See U.S.S.G. § 1B1.3(a)(1)(B);
United States v. Ramirez, 783 F.3d 687, 690–91 (7th Cir. 2015).
Counsel further contemplates disputing Briscoe’s status as a career offender, and
the resulting criminal history category of VI, but she recognizes (as did counsel in the
district court) that any such challenge is squarely foreclosed by our precedent and
therefore frivolous. We have interpreted the term “controlled substance offense,”
U.S.S.G. § 4B1.2(b), to include prior state convictions—like Briscoe’s Indiana conviction
for dealing in cocaine—that criminalize substances that are not controlled federally.
No. 21-2831 Page 3
See United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020), cert. denied, 141 S. Ct. 1239(2021). And we have consistently rejected invitations to revisit this decision and adopt
the narrower interpretation used in some other circuits. See, e.g., United States v. Wallace,
991 F.3d 810, 817 & n.3 (7th Cir.), cert. denied, 142 S. Ct. 362 (2021). Based on this career-
offender designation, the district court correctly calculated the resulting guidelines
range to be 292 to 365 months’ imprisonment.
Finally, counsel rightly sees no point in renewing Briscoe’s final preserved
argument on appeal. He asked the district court to vary from the guidelines range as a
policy matter, asserting that the purity of the methamphetamine he distributed “is not
an accurate indicator of culpability.” But we never require a court to deviate from the
Guidelines for policy reasons, though it may do so in its discretion. See United States v.
Bostock, 910 F.3d 348, 350 (7th Cir. 2018). The court otherwise appropriately considered
the mitigating factors of Briscoe’s unstable childhood, mental health and substance
abuse struggles, his educational efforts, and his family support in fashioning its
ultimate sentence of 276 months’ imprisonment. See 18 U.S.C. § 3553(a). The resulting
sentence was 16 months lower than the bottom of Briscoe’s guidelines range, and we
agree with counsel that nothing in the record could rebut the presumption that this
below-guidelines sentence was substantively reasonable. See United States v. Fitzpatrick,
32 F.4th 644, 651 (7th Cir. 2022).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.