United States v. Douglas, Deandre L. , 182 F. App'x 558 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2006
Decided May 30, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 05-2982, 05-3026 & 05-3073
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Southern District
of Indiana, Indianapolis Division
v.
Nos. 1:04CR00201-002, 1:04CR00201-
DEANDRE DOUGLAS and 003 & 1:93CR00011-001
DANIEL CANNON,
Defendants-Appellants. David F. Hamilton,
Judge.
ORDER
Deandre Douglas and Daniel Cannon conspired with several other
individuals to rob a drug dealer of 20 kilograms of cocaine. They both pleaded
guilty to one count of conspiracy to possess with intent to distribute 5 kilograms or
more of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), and one count of carrying a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1). Douglas
and Cannon executed virtually identical plea agreements that include a waiver of
the right to appeal their convictions and sentences "on any ground" if the district
Nos. 05-2982, 05-3026 & 05-3073 Page 2
court imposed no more than 270 months of imprisonment. The court accepted those
agreements and sentenced both Douglas and Cannon to a total of 270 months. The
court also imposed concurrent five-year terms of supervised release and $200 in
special assessments. Douglas was ordered to pay a $500 fine. Cannon was on
supervised release for prior convictions when he participated in the conspiracy, and
his release was revoked as a consequence. His plea agreement does not cover the
revocation, which resulted in an additional term of 60 months to be served
consecutively to his 270-month sentence.
Douglas and Cannon filed appeals from their convictions and sentences, but
the government moved to dismiss those two cases based on the appeal waivers in
the plea agreements. Both appointed lawyers responded to the government's
motions by moving to withdraw under Anders v. California, 386 U.S. 738 (1967),
because they cannot discern a nonfrivolous argument for appeal. Cannon's lawyer
also moved under Anders to withdraw from Cannon's separate appeal of the
revocation of his supervised release. Douglas and Cannon were invited to respond
per Circuit Rule 51(b), and Douglas has done so. Since the Anders submissions are
facially adequate, we review only the potential issues identified in those briefs and
Douglas's response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997)
(per curiam). Counsel for both defendants spend much time discussing whether
Douglas and Cannon could argue that their guilty pleas were involuntary. But it is
not clear that either defendant wants his pleas set aside, and if they do not, this
discussion was unnecessary. See United States v. Knox, 287 F.3d 667, 670-71 (7th
Cir. 2002).
In any case, our review of the records shows that the district court
substantially complied with Fed. R. Crim. P. 11. See United States v. Schuh, 289
F.3d 968, 975 (7th Cir. 2002). Douglas says in his response that he did not
understand the plea agreement because his lawyer did not explain it to him, but
any argument that his pleas should be set aside as involuntary for this reason is
frivolous. Douglas stated under oath at his plea colloquy that his lawyer read the
plea agreement to him and that he understood it. See United States v. Loutos, 383
F.3d 615, 619 (7th Cir. 2004) (explaining that representations made under oath
during plea colloquy are presumed truthful); United States v. Bridgeman, 229 F.3d
589, 592 (7th Cir. 2000) (same).
As the defendants' guilty pleas were voluntary, it follows that the appeal
waivers are valid. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002)
(appeal waiver "stands or falls" with the plea); United States v. Behrman, 235 F.3d
1049, 1051 (7th Cir. 2000); United States v. Wenger, 58 F.3d 280, 282 (7th Cir.
1995). Therefore, the other potential arguments identified by counsel and Douglas
are frivolous since the waivers preclude an appeal "on any ground."
Nos. 05-2982, 05-3026 & 05-3073 Page 3
Cannon's appeal of his supervised release revocation is not covered by the
appeal waiver, however. The only potential argument counsel considers is whether
an additional 60 months of imprisonment—which exceeds the range calculated
under the applicable policy statements—was unreasonable. A period of
reimprisonment imposed for violating supervised release is reasonable if the district
court considered the applicable policy statements and the factors in 18 U.S.C.
§ 3553(a). United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005); United States
v. Salinas, 365 F.3d 582, 588-89 (7th Cir. 2004). The district court did exactly that
when sentencing Cannon. It was aware of the range called for by the policy
statements and explained its decision to impose a longer period of imprisonment.
In doing so, the court discussed many of the § 3553(a) factors, including the nature
and seriousness of the violation, Cannon's prior history of violent crimes and poor
behavior in prison, and the need to protect the public. Therefore, we agree with
counsel that this potential argument is frivolous.
For the above reasons, we GRANT the motions to withdraw and DISMISS
each of the three appeals.