United States v. Paul, Jason M. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2006
Decided January 26, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2740
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 03-CR-117
JASON M. PAUL,
Defendant-Appellant. William C. Griesbach,
Judge.
ORDER
Jason Paul pleaded guilty to one count of using a telephone to facilitate the
possession and distribution of marijuana, 21 U.S.C. § 843(b). Paul was overheard
during a wiretap arranging to buy a small quantity of marijuana. In his plea
agreement he stipulated that the total amount of marijuana he bought from his
codefendants over the course of a year was between one and 2.5 kilograms. The
district court, applying the sentencing guidelines as advisory, calculated a total
offense level of 8 and criminal history category of IV, corresponding to a guideline
imprisonment range of 10 to 16 months. The court then imposed six months’
imprisonment, to be followed by one year of supervised release. As a special
condition of release, the court ordered that Paul be confined at home for 120 days.
The court also imposed a fine of $1,000, and a special assessment of $100. Paul
No. 05-2740 Page 2
filed a notice of appeal, but his appointed counsel now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he cannot find a nonfrivolous
issue. Counsel’s Anders brief is facially adequate, and Paul has not responded to
our invitation under Circuit Rule 51(b) to comment on counsel’s submission. Thus
our review is limited to those potential issues identified in counsel’s brief. See
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel first considers whether Paul could challenge his guilty plea as
involuntary because the district court did not fully comply with the requirements of
Federal Rule of Criminal Procedure 11. The omissions cited by counsel are quite
minor, and, regardless, our review would be limited to plain error because Paul
never moved to withdraw his guilty plea in the district court. United States v.
Vonn, 535 U.S. 55, 58 (2002); United States v. Schuh, 289 F.3d 968, 974 (7th Cir.
2002). More importantly, counsel does not indicate that Paul has expressed an
interest in having his guilty plea set aside. We have held that lawyers should not
raise a Rule 11 claim on appeal or even explore the question in an Anders
submission unless the defendant wants the plea set aside. See United States v.
Knox, 287 F.3d 667, 672 (7th Cir. 2002). Without such an indication from Paul, we
will not analyze this potential argument any further.
Counsel also considers whether Paul could argue that the district court
should have suppressed evidence of his intercepted telephone calls. Those calls
—the basis of the § 843(b) charge—were overheard during a wiretape on a
codefendant’s cellular phone. But, as counsel observes, Paul did not move to
suppress his intercepted conversations, and his unconditional guilty plea waived his
right to argue for suppression of the intercepts on appeal. See United States v.
Rogers, 387 F.3d 925, 932 (7th Cir. 2004); United States v. Elizalde-Adame, 262
F.3d 637, 639 (7th Cir. 2001). Indeed, as a term of his plea agreement, Paul
explicitly “surrender[ed] any claims he may have raised in any pretrial motion.”
Finally, counsel considers whether Paul could challenge the reasonableness
of his sentence. The guideline calculations were undisputed and, consistent with
the Supreme Court’s holding in United States v. Booker, 543 U.S. 220 (2005), the
district court applied the sentencing guidelines as advisory. The court considered
Paul’s sentencing arguments and the factors identified in 18 U.S.C. § 3553(a), and
imposed a sentence at the bottom of the guideline range. See U.S.S.G. §5C1.1(d)(2)
(permitting minimum term to include supervised release with a condition of home
detention, provided that imprisonment comprises one-half the term). That term is
presumptively reasonable, see, e.g., United States v. Paulus, 419 F.3d 693, 700 (7th
Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel
is unable to construct any argument to undermine the presumption. Accordingly,
we agree with counsel that it would be frivolous to argue on this record that Paul’s
No. 05-2740 Page 3
sentence is unreasonable. See United States v. Bryant, 420 F.3d 652, 658 (7th Cir.
2005); Mykytiuk, 415 F.3d at 608.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.