United States v. Hughes, Kunta , 253 F. App'x 592 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 October 31, 2007
Decided November 2, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1316
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 05-CR-880
KUNTA HUGHES,
Defendant-Appellant. Matthew F. Kennelly,
Judge.
ORDER
A wiretap led to the seizure of 86 grams of crack cocaine and a pistol from the
residence of Kunta Hughes. He was charged with several drug offenses but pleaded
guilty to a single conspiracy count, see 21 U.S.C. §§ 846, 841(a)(1), in exchange for
dismissal of the other counts. The district court sentenced him to 210 months in
prison, well below the sentencing guidelines recommendation of 262 to 337 months.
Hughes filed a notice of appeal, but his appointed lawyers now seek to withdraw
under Anders v. California, 386 U.S. 738 (1967), because they are unable to discern
a nonfrivolous issue to pursue. Counsel’s supporting brief is facially adequate, and
Hughes has responded to our invitation under Circuit Rule 51(b) to comment on
counsel’s submission. We limit our review to the potential issues identified in
counsel’s brief and Hughes’s response. See United States v. Schuh, 289 F.3d 968,
973-74 (7th Cir. 2002).
No. 07-1316 Page 2
In their Anders brief, counsel first consider whether Hughes might challenge
the voluntariness of his guilty plea. After consulting with Hughes, see United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), counsel contemplate arguing that
Hughes’s former lawyer coerced his guilty plea by promising that he would be
sentenced to no more than 120 months’ imprisonment, the statutory minimum
given the amount of crack involved in the conspiracy. See 21 U.S.C. § 841(b)(1)(A).
As counsel observe, because Hughes did not object at sentencing, our review would
be limited to a search for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006). Here
there would be no basis to find error, let alone plain error. Nothing in the record
suggests that former counsel or anyone else told Hughes that his sentence would be
capped at 120 months. Indeed, Hughes told the district court under oath that no
one had promised him anything in return for his guilty plea, and he added that he
discussed with his attorney the application of the sentencing guidelines to his case.
More importantly, Hughes assured the court that he understood he could be
sentenced to life imprisonment. Hughes’s sworn statements are presumed to be
truthful. Schuh, 289 F.3d at 975. Accordingly, we agree with counsel that the
proposed argument would be frivolous on this record. If Hughes has evidence that
his counsel misled him, he can file a collateral action that will allow for expansion of
the record. See United States v. Wilson, 481 F.3d 475, 485 (7th Cir. 2007).
Apart from the guilty plea, counsel also have considered whether Hughes
might have a nonfrivolous argument concerning the calculation of the guidelines
range or the reasonableness of the prison term imposed. Counsel have set out in
detail the steps taken by the district court in applying the guidelines, but the only
possible errors they identify are the court’s use of an older version of the guidelines
and its assessment of a two-level upward adjustment under U.S.S.G. § 2D1.1(b)(1)
for possession of a dangerous weapon in connection with the conspiracy. We agree
with counsel that both contentions would be frivolous. The court should have cited
the guidelines manual in effect when Hughes was sentenced, not the version in
effect when he committed the offense. See U.S.S.G. § 1B1.11(a); United States v.
Baretz, 411 F.3d 867, 874 (7th Cir. 2005). But as counsel recognize, the choice
between the two versions is irrelevant in this particular case because the pertinent
guidelines are the same in each. As far as the weapon adjustment, moreover, the
court overruled Hughes’s objection and assessed the two levels because the officers
who executed the search warrant at Hughes’s residence discovered his .40-caliber
pistol in close proximity to the drugs and he told them afterward that he was about
to grab the gun and “blast” them until he realized they were police officers. That
evidence provided ample foundation for the court to conclude that a connection
between the gun and the drugs was not clearly improbable. See U.S.S.G. § 2D1.1
cmt. n.3; United States v. Cashman, 216 F.3d 582, 588 (7th Cir. 2000); United States
v. Grimm, 170 F.3d 760, 767 (7th Cir. 1999); United States v. Garcia, 925 F.2d 170,
174 (7th Cir. 1991).
No. 07-1316 Page 3
As to the reasonableness of Hughes’s 210-month prison term, here again we
agree with counsel that any challenge would be frivolous. The district court
selected that sentence after commenting on a number of the factors discussed by
both parties, including the seriousness of the crime and the fact that Hughes’s “job”
was selling drugs, his criminal history, the presence of a gun, his stable family
circumstances, and the sentence his codefendant received. See 18 U.S.C.
§ 3553(a)(1), (2)(A), (2)(B), (2)(C), (4)(A), (6). The sentence imposed is four years less
than the low end of the guidelines range, and as we said in United States v. George,
403 F.3d 470, 473 (7th Cir. 2005), it is difficult to conceive of a sentence being
unreasonably high when it is below the guidelines range.
In his Rule 51(b) response, Hughes proposes two other arguments, both of
them frivolous. Hughes would contend that United States v. Booker, 543 U.S. 220(2005), requires sentencing factors under the guidelines to be found by a jury on
proof beyond a reasonable doubt, but we have rejected that contention innumerable
times. See, e.g., United States v. Van Waeyenberghe, 481 F.3d 951, 960 (7th Cir.
2007); United States v. White, 443 F.3d 582, 592 (7th Cir. 2006). Hughes also
contends that his below-range prison sentence is unreasonable because of the
differing base offense levels for like amounts of crack and powder cocaine, a
difference that the Sentencing Commission has once again undertaken to reduce
with an amendment proposed to take effect on November 1, 2007. U.S. Sentencing
Comm’n, Notice of Submission to Congress of Amendments to the Sentencing
Guidelines Effective Nov. 1, 2007, 72 Fed. Reg. 28558 (May 21, 2007). But Hughes
never asked the district court to reduce his sentence further because of the
perceived disparity between sentences for offenses involving crack and powder
cocaine, and we have explained that a defendant cannot complain on appeal that his
sentence should have been lower on account of factors under 18 U.S.C. § 3553(a)
that never were disclosed to the sentencing court. United States v. Filipiak, 466
F.3d 582, 584 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). Moreover, the Sentencing Commission’s proposed amendment is just that—a
proposal—and the Commission has yet to decide whether the amendment will be
made retroactive even if Congress permits it to take effect. See U.S. Sentencing
Comm’n, Request for Public Comment, 72 Fed. Reg. 41794 (July 31, 2007); see also
U.S.S.G. § 1B1.11. If the proposed amendment takes effect and is made retroactive,
Hughes may file a motion to reduce his sentence. See 18 U.S.C. § 3582(c)(2); United
States v. Lloyd, 398 F.3d 978, 979 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED and his appeal is DISMISSED.