United States v. Smith, Richard A. , 186 F. App'x 666 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2006
Decided June 20, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2183
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division
v.
No. 04 CR 6-1
RICHARD A. SMITH,
Defendant-Appellant. Milton I. Shadur,
Judge.
ORDER
Richard Smith was convicted in 1994 of possession of marijuana with intent
to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm by an illegal alien,
18 U.S.C. § 922(g)(5). Both offenses are aggravated felonies under the Immigration
and Naturalization Act. See 8 U.S.C. § 1101(a)(43)(B), (E)(ii). Smith was sentenced
to a total of 33 months’ imprisonment. Smith was removed to Belize after his
release from prison, but in 2001 he reentered the United States illegally. The
following year an Illinois court convicted him of possession of over five kilograms of
marijuana and sentenced him to four years’ imprisonment. He was paroled in June
2003. In December 2003 he was stopped for a traffic violation and arrested after
police discovered he was an illegal alien. Federal authorities promptly charged him
with being present in the United States after removal, 8 U.S.C. § 1326(a), and in
No. 05-2183 Page 2
February 2005, after a year of delays occasioned by Smith’s motion to suppress and
three changes of counsel, he pleaded guilty. The district court sentenced him to 64
months’ imprisonment—in the middle of the 57- to 71-month guidelines range—and
three years’ supervised release. Smith appeals, but his appointed attorney (now his
fifth lawyer) moves to withdraw under Anders v. California, 386 U.S. 738 (1967),
because he cannot discern any nonfrivolous issue. We invited Smith to respond to
counsel’s motion, see Cir. R. 51(b), and he has done so. Our review is limited to the
points discussed in counsel’s facially adequate brief and Smith’s response. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers arguing that Smith’s guilty plea was involuntary and
should be set aside because of inadequacies in the plea colloquy. Counsel is correct
to evaluate this question because Smith has decided he wants his guilty plea
vacated. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But, as
counsel recognizes, our review would be for plain error only because Smith did not
seek to withdraw his guilty plea in the district court. See United States v. Vonn,
535 U.S. 55, 58-59 (2002). And, regardless, counsel has not identified any
significant shortcoming in the plea colloquy. Counsel notes that the court failed to
inform Smith that he could persist with his plea of not guilty, see Fed. R. Crim. P.
11(b)(1)(B), but Smith obviously knew as much because the very purpose of the
colloquy was to change that plea, see Knox, 287 F.3d at 670. Counsel further
observes that the court failed to admonish Smith about the mandatory $100 special
assessment, see Fed. R. Crim. P. 11(b)(1)(L), but this omission necessarily was
harmless because Smith was told that he could be fined up to $250,000. Finally,
counsel posits that perhaps the court did not do enough to assure Smith’s
understanding of the proceedings after Smith said he was having difficulty hearing
the judge. Counsel recognizes, though, that this contention goes nowhere because
the judge accommodated Smith by speaking louder, and neither counsel nor Smith
has asserted that Smith was unable to hear any part of the colloquy. Counsel is
thus correct that a Rule 11 argument constructed around any of these perceived
inadequacies would be frivolous.
Counsel also evaluates whether Smith might argue that his prison sentence
is unreasonable. We have held that a sentence within a properly calculated
guidelines range is presumptively reasonable, United States v. Paulus, 419 F.3d
693, 700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005), so Smith would have to persuade us that the presumption falls away in this
case. Counsel proposes two reasons why the presumption should give way but
rejects each as frivolous. We take them in turn.
Counsel first considers whether Smith might argue on appeal that his prison
term is unreasonably long because the district court did not “account for” the time
he spent in state prison for his 2002 drug conviction in Illinois. Counsel theorizes
No. 05-2183 Page 3
that, if the government had acted to prosecute Smith before the state paroled him,
then his predecessor might have been able to argue for a concurrent federal
sentence. (Counsel also states, without elaboration, that had the government
brought the § 1326(a) charge before Smith was released from state prison, he would
not have received the extra criminal history point for committing a crime within
two years of his release from prison, see U.S.S.G. § 4A1.1(e)). It is sufficient to note,
as counsel does, that Smith did not make any such argument to the district court, so
it cannot be the basis for contending that his sentence is unreasonable. See
Mykytiuk, 415 F.3d at 608 (defendant has burden to rebut presumptively
reasonable guideline sentence by drawing district court’s attention to 18
U.S.C. § 3553(a) factors); United States v. Cunningham, 429 F.3d 673, 675 (7th Cir
2005). Moreover, even if the district court had been inclined to impose a concurrent
sentence, this potential argument is particularly frivolous because it is evident that
counsel has no information suggesting that federal authorities even knew Smith
was back in the United States before his traffic offense in December 2003 led to that
discovery. A defendant cannot complain because his crime was not discovered
sooner, and even a defendant whose offense was known to authorities has no
complaint about preindictment delay unless it impaired his right to a fair trial.
United States v. Marion, 404 U.S. 307, 324-25 (1971); United States v. Miner, 127
F.3d 610, 615 (7th Cir. 1997). Smith has never contended that he suffered that kind
of harm.
Second, counsel and Smith explore whether an argument could be made that
Smith’s prison term is unreasonable because the Northern District of Illinois does
not have a “fast track” program for immigration offenders. See Prosecutorial
Remedies and Tools Against the Exploitation of Children Today Act of 2003, Pub. L.
No. 108-21, § 401, 117 Stat. 650, 675; U.S.S.G. § 5K3.1. This potential argument is
frivolous because we have held that the absence of a fast-track program in the
sentencing district is not an acceptable reason for imposing a sentence below the
guidelines range. United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir.
2006) (per curiam); United States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir.
2006). In any event, Smith had no interest in fast-tracking himself because he did
not plead guilty at an early stage in his case. See United States v. Martinez-Flores,
428 F.3d 22, 25-26 (1st Cir. 2005) (“In the typical fast-track system, defendants who
agree to plead guilty at an early stage, and to waive their rights to file motions and
to appeal, were rewarded with shorter sentences”).
Finally, Smith argues that his offense level was improperly increased by 16
levels when the judge and not a jury determined that his 1994 convictions are
aggravated felonies that qualified him for an upward adjustment under U.S.S.G.
§ 2L1.2(b)(1)(A). The import of United States v. Booker, 543 U.S. 220 (2005), is that
there is no role for a jury in arriving at the appropriate guidelines range. See
United States v. Hale, No. 05-1922, 2006 WL 1458206, at *15 (7th Cir. May 30,
No. 05-2183 Page 4
2006) (per curiam); United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006). The
holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), is still relevant with respect
to statutory enhancements, except those for recidivism. See Jones v. Hulick,
No. 04-2759, 2006 WL 1493591, at *5 (7th Cir. June 1, 2006); United States v.
Farris, No. 05-1781, 2006 WL 1420818, at *2 (7th Cir. May 25, 2006). Thus, while
Smith faced an enhanced statutory maximum of 20 years because the 1994
convictions that preceded his removal are both aggravated felonies, see 8 U.S.C.
§ 1326(b)(2), prior convictions remain excluded from the limitations on judicial
factfinding, Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998); United
States v. Pittman, 418 F.3d 704, 709 (7th Cir. 2005). This potential argument is
therefore frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.