United States v. Heard, Germaine , 256 F. App'x 834 ( 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NONPRECEDENTIAL DISPOSITION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 November 29, 2007
Decided November 30, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE. S. SYKES, Circuit Judge
Nos. 07-1809 & 07-1865
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Eastern District
of Wisconsin
v.
No. 06 CR 40
GERMAINE HEARD and JESSE
SANDERS, J.P. Stadtmueller,
Defendants-Appellants. Judge
ORDER
Germaine Heard pleaded guilty to conspiracy to distribute marijuana,
cocaine, and crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to
the statutory minimum of 240 months’ imprisonment. See id. § 841(b)(1)(A). Jesse
Sanders pleaded guilty to the same conspiracy and to possessing a gun after a
felony conviction. See 18 U.S.C. § 922(g)(1). He was sentenced at the low end of the
guidelines range to a total of 168 months’ imprisonment. We consolidated their
appeals, and in both cases their appointed counsel have moved to withdraw because
they are unable to find a nonfrivolous basis for appeal. See Anders v. California,
386 U.S. 738 (1967). Counsel’s supporting briefs are facially adequate, and neither
Heard nor Sanders responded to our invitation under Circuit Rule 51(b) to explain
why he believes his appeal has merit, so we review only the potential issues
identified in the briefs. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
Nos. 07-1809, 07-1865 Page 2
We begin with Heard. His lawyer first considers whether Heard might
challenge the voluntariness of his guilty plea, but properly avoids exploring that
potential issue because Heard has told him that he does not wish to have his plea
vacated. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Heard’s counsel also considers, but correctly rejects as frivolous, a challenge
to the reasonableness of Heard’s prison sentence. The district court had no
discretion to sentence Heard below the statutory minimum, see United States v.
Duncan, 479 F.3d 924, 930 (7th Cir. 2007), which the court computed correctly
based on the amount of crack cocaine involved in the conspiracy (over 50 grams)
and Heard’s previous drug conviction. See 21 U.S.C. § 841(b)(1)(A). Heard did not
challenge the validity of that previous conviction below, and counsel does not
contend that grounds exist for such a challenge. See 21 U.S.C. § 851(a), (c)(2).
We turn next to Sanders. His lawyers first inform us that Sanders wants his
guilty pleas set aside, so counsel consider whether Sanders might argue that there
were inadequacies in the plea colloquy. We agree with counsel that this argument
would be frivolous because the colloquy substantially complied with Federal Rule of
Criminal Procedure 11. See Schuh, 289 F.3d at 975. Our review would be for plain
error because Sanders did not seek to withdraw his guilty pleas in the district court.
See United States v. Vonn, 535 U.S. 55, 58-59 (2002). Counsel note that the district
court did not mention Sanders’ right to an attorney, see Fed. R. Crim. P. 11(b)(1)(D),
but Sanders could not have been prejudiced by the error because appointed counsel
was with him during the colloquy. See United States v. Lovett, 844 F.2d 487, 491-92
(7th Cir. 1988). Counsel also note that the court omitted a warning that it could
order him to forfeit the proceeds of his drug dealing. See Fed. R. Crim. P.
11(b)(1)(J). But this omission would have been harmless because Sanders
consented to the forfeiture in his written plea agreement. See United States v.
Driver, 242 F.3d 767, 769 (7th Cir. 2001).
Sanders’ counsel next consider whether he could challenge the
reasonableness of his overall prison term, but properly conclude that such a
challenge would be frivolous. Sanders’ sentence at the bottom of the guidelines
range would be presumed reasonable. See United States v. Rita, 127 S. Ct. 2456,
2463 (2007); United States v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006).
The district court gave detailed and meaningful consideration to the relevant
factors in 18 U.S.C. § 3553(a), see United States v. Laufle, 433 F.3d 981, 987 (7th
Cir. 2006), especially noting the heightened need for a strong deterrent in Sanders’
case because he was previously imprisoned on a drug conviction. And counsel are
unable to articulate any reason that the presumption of reasonableness would be
overcome on appeal.
Nos. 07-1809, 07-1865 Page 3
Accordingly, the motions of both Heard’s and Sanders’ counsel are
GRANTED, and the appeals are DISMISSED.