United States v. Hayes, Elijah , 209 F. App'x 548 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006
Decided December 15, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 05-3748 & 05-3798
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 04-CR-117
ELIJAH HAYES & CAROL
GRAHAM-HAYES, J.P. Stadtmueller,
Defendants-Appellants. Judge.
ORDER
Husband and wife Elijah Hayes and Carol Graham-Hayes pleaded guilty to
conspiring to commit bank fraud, see 18 U.S.C. §§ 1344(1), 1349, after federal
agents executing search warrants at their Wisconsin and California residences
uncovered evidence that they had opened bank and credit-card accounts using
stolen identities. As part of their plea agreements, both defendants reserved the
right to challenge on appeal the denials of their respective motions to suppress the
fruits of those searches. Otherwise, their guilty pleas were unconditional. The
district court calculated a guidelines imprisonment range of 37 to 46 months for
Hayes, sentenced him to serve 40 months, and ordered him to pay $8,412.74 in
restitution. For Graham-Hayes, the court calculated a guidelines imprisonment
range of 51 to 63 months, sentenced her to serve 63 months, and ordered her to pay
$9,607.12 in restitution. The defendants filed notices of appeal, but their appointed
lawyers have moved to withdraw under Anders v. California, 386 U.S. 738 (1967),
Nos. 05-3748 & 05-3798 Page 2
because they cannot discern any nonfrivolous arguments to pursue. The defendants
have filed separate responses opposing their attorneys’ submissions. See Cir. R.
51(b). Our review is limited to the potential issues identified in counsel’s facially
adequate briefs and in the defendants’ responses. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
The defendants were arrested in California after a chain of events that was
recounted at the evidentiary hearing on their motions to suppress. In July 2002
deputy United States marshals entered the defendants’ apartment in Milwaukee,
Wisconsin, to execute an arrest warrant for Hayes, who was wanted for violating
the conditions of his supervised release arising from a prior federal conviction.
Hayes wasn’t home, but while deputies were inside the apartment they noticed on
the top of a desk several identification cards and Social Security numbers for
persons other than the defendants. Based on this observation, the deputies
obtained a warrant to search the apartment for evidence of Hayes’s whereabouts.
When they executed the search warrant, they seized fraudulent identification cards
and paperwork from members of the public requesting copies of documents on file
with the Milwaukee County Register of Deeds, where Graham-Hayes (who, like her
husband, was on supervised release) worked as a secretary. The paperwork
included personal information about the individuals making the requests.
The defendants, who were not home when the search warrant was executed,
fled Milwaukee and eventually made their way to a relative’s home in Lynnwood,
California. In March 2003 Hayes mailed to the Lynnwood address an envelope
addressed to one of his aliases and containing fraudulent identifications and stolen
Social Security numbers. A postal employee at a mail-processing plant near
Lynnwood saw two cards fall out of the envelope, which was overstuffed and torn
open. The employee attempted to put the cards back in the package and noticed
that they were blank Social Security cards. He also observed through the torn
envelope two identification cards bearing Graham-Hayes’s picture with different
addresses, and a sheet of paper with a list of what appeared to be Social Security
numbers. The employee brought the envelope to his supervisor, who turned it over
to a postal inspector. The inspector inventoried the envelope’s contents and
obtained a warrant to search the Lynnwood residence listed on the envelope,
contingent upon making a controlled delivery of the envelope to that residence.
After the envelope was successfully delivered, agents arrested the defendants and
recovered the envelope and other incriminating evidence.
In denying the motions to suppress, the district court concluded that the
initial entry into the Milwaukee apartment was constitutional because the deputy
marshals had an arrest warrant for Hayes and had reason to believe that he would
be home at the time. The court also concluded that the documents the agents saw
Nos. 05-3748 & 05-3798 Page 3
in plain view in the apartment provided probable cause for the issuance of the
search warrant that followed. The court further held that federal agents in
California had probable cause to get a search warrant for the defendants’ Lynnwood
residence based on the items from Hayes’s damaged envelope observed by the postal
employee in that city.
In their Anders submissions, counsel for both defendants first consider
whether their clients could argue that the initial entry into the Milwaukee
apartment was unconstitutional, but conclude that such an argument would be
frivolous because the deputies had reason to believe Hayes resided there and would
be home. See Payton v. New York, 445 U.S. 573, 603 (1980) (“[F]or Fourth
Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within.”); United States v. Pallais, 921
F.2d 684, 690 (7th Cir. 1990). In response to counsel’s submission, Graham-Hayes
asserts that the deputies had no reason to believe Hayes was home when they
entered the apartment. But Hayes’s probation officer had told the deputies he
would likely be at the apartment, and the building’s caretaker had recently seen
Hayes there. Moreover, the deputy who led the search for Hayes testified that he
believed Hayes would be home because they entered at 10:00 a.m. on a weekday
and Hayes was an unemployed drug addict with no car. See United States v.
Thomas, 429 F.3d 282, 2867, 289 (D.C. Cir. 2005) (stating that making entry before
6:30 a.m. “was reason enough” to believe suspect would be home); United States v.
Bervaldi, 226 F.3d 1256, 1267 (11th Cir. 2000) (stating that officers who executed
arrest warrant at 6:00 a.m. could presume suspect was home absent evidence
regarding suspect’s schedule); Valdez v. McPheters, 172 F.3d 1220, 1227-28 (10th
Cir. 1999) (explaining that officer’s knowledge that suspect was unemployed and
had habit of staying out late and abusing alcohol and drugs gave reason to believe
suspect would be home at noon). Thus, we agree with counsel that it would be
frivolous to challenge the suppression ruling on the ground that agents had no
reason to believe Hayes would be home when they attempted to execute the arrest
warrant.
Next, both counsel briefly consider whether the defendants could argue that
the execution of the search warrant at the Milwaukee apartment was illegal. But
because there is no basis to challenge the initial entry, and because documents the
deputies observed at the time in plain view provided probable cause for the search
warrant, counsel properly conclude that this potential argument is frivolous. See
Horton v. Cal., 496 U.S. 128, 135 (1990); United States v. Garcia, 376 F.3d 648, 652
(7th Cir. 2004).
Nos. 05-3748 & 05-3798 Page 4
Both counsel next consider whether the defendants could challenge the
district court’s ruling that the postal employee’s interception of the envelope and
the subsequent search of the Lynnwood residence were constitutional. A postal
worker may detain a package for a reasonable length of time upon reasonable
suspicion that it contains contraband. United States v. Ganser, 315 F.3d 839, 843
(7th Cir. 2003). And contraband protruding from a package can provide probable
cause for the issuance of a search warrant. See United States v. Allman, 336 F.3d
555, 555-56 (7th Cir. 2003). Here, the envelope tore open during processing, and
the blank Social Security cards, multiple Social Security numbers, and two different
identification cards for Graham-Hayes were in plain view when the employee
picked up the envelope. That visible contraband provided probable cause to search
the Lynnwood property, and so we agree with counsel that any argument about the
California search would be frivolous. See United States v. Sidwell, 440 F.3d 865,
868 (7th Cir. 2006).
Next, both counsel address whether the defendants could challenge the
validity of their guilty pleas. But counsel report that their clients wish to have
their pleas vacated only if they succeed in overturning the adverse rulings on their
motions to suppress. And because counsel correctly conclude that any suppression
argument would be frivolous, they properly refrain from addressing the validity of
the guilty pleas. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). It
follows that any other pretrial matter not of jurisdictional significance is waived
and thus frivolous. See Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006); United
States v. Villegas, 388 F.3d 317, 322 (7th Cir. 2004). That would include any
possible claim under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-67.
Counsel next consider whether there is any basis for the defendants to attack
their prison sentences. Both counsel evaluate whether the defendants could argue
that the district court miscalculated the loss in applying U.S.S.G. § 2B1.1(b)(1)(F).
But the defendants stipulated to the loss amount in their plea agreements, so any
possible appellate argument has been waived and, thus, would be frivolous. See
United States v. Siegler, 272 F.3d 975, 978 (7th Cir. 2001); United States v.
Newman, 148 F.3d 871, 878 (7th Cir. 1998).
Counsel for Graham-Hayes also considers whether she could challenge the
two-level increase she received because the couple relocated their fraudulent
scheme to California to evade law enforcement. See U.S.S.G. § 2B1.1(b)(9)(A).
Graham-Hayes did not object to the probation officer’s recommendation that she be
given this increase, so our review would be limited to a search for plain error. See
United States v. Groves, No. 05-2902, 2006 WL 3375338, *16 (7th Cir. Nov. 22,
2006). After fleeing Milwaukee, Graham-Hayes opened bank accounts in Georgia
and Tennessee using false identifications, and she took with her to California a
Nos. 05-3748 & 05-3798 Page 5
significant amount of stolen personal and financial information. Given these facts,
counsel is right that any argument about the upward adjustment would be
frivolous, no matter the standard of review.
Both counsel also ask whether the defendants could argue that their
sentences are unreasonable, but properly conclude that this potential argument
would be frivolous. The defendants were sentenced to prison terms falling within
the guidelines range. Those terms would be presumed reasonable. See United
States v. Gama-Gonzalez, No. 06-1965 (7th Cir. Dec. 5, 2006); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). But even absent this presumption, cf.
United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. 2006), cert. granted,
75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-5754) (granting writ of certiorari to
decide if applying a presumption of reasonableness to a sentence within the range is
consistent with United States v. Booker, 543 U.S. 220 (2005)), it would be frivolous
to argue that the prison sentences are unreasonable because the district court
properly considered the sentencing factors under 18 U.S.C. § 3553(a). See United
States v. Williams, 436 F.3d 767, 768-69 (7th Cir. 2006). With respect to Hayes, the
court considered his criminal history, see id. § 3553(a)(1), and the statements of his
victims, and concluded that the criteria in § 3553(a)(2) justified a 40-month
sentence. For Graham-Hayes, the court found that the seriousness of her offense,
see id. § 3553(a)(2)(A), and the need to protect the public, see id. § 3553(a)(2)(C),
justified her 63-month sentence. The district court did not need to recite the § 3553
factors in a “‘checklist fashion,’” United States v. Farris, 448 F.3d 965, 969 (7th Cir.
2006) (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)), and it did
not ignore any of the defendants’ arguments for a lower sentence, see United States
v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). Thus, it would be frivolous to
argue that the sentence was unreasonable or that the court failed to adequately
explain its reasoning in imposing the sentence.
Finally, counsel for Hayes considers whether he could challenge the district
court’s restitution order. Because Hayes did not object to the restitution
calculation, our review would be for plain error. See United States v. Thigpen, 456
F.3d 766, 771 (2006). Hayes himself stated in his objection to the presentence
report that the actual loss was $8,412.74, see United States v. Seward, 272 F.3d 831,
839 (7th Cir. 2001) (noting that restitution is based on the amount of actual loss), so
counsel properly concludes that it would be frivolous for Hayes to argue that the
court plainly erred in calculating the restitution award.
In their Rule 51(b) submissions both defendants assert that their trial
lawyers were ineffective for failing to develop facts in their favor. But claims of
ineffective assistance are better saved for collateral proceedings under 28 U.S.C.
Nos. 05-3748 & 05-3798 Page 6
§ 2255 where the record can be fully developed. See Massaro v. United States, 538
U.S. 500, 504-05 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, we GRANT counsel’s motions to withdraw and DISMISS the
appeals.