United States v. Cliffton Harris ( 2020 )

NONPRECEDENTIAL DISPOSITION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 January 7, 2020
Decided January 8, 2020
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 19-1502
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 16-CR-73-JPS
CLIFFTON HARRIS, J. P. Stadtmueller,
Defendant-Appellant. Judge.
ORDER
This case is on appeal for a second time. Cliffton Harris pleaded guilty to two
counts of carjacking, 18 U.S.C. §§ 211(1) & (2), and one count of brandishing a firearm
during a crime of violence. §§ 924(c)(1)(A)(ii) & (iii). The district court sentenced him to
112 months’ imprisonment—28 months for the carjacking charges, followed by a
mandatory consecutive 84-month term for the firearm charge. See § 924(c). In his first
appeal, Harris challenged only his sentence, which we vacated in light of Dean v.
United States, 137 S. Ct. 1170 (2018). On remand, the district court explained the
reasoning behind its original sentence, reweighed the § 3553(a) sentencing factors, and
imposed an identical sentence. Harris appealed again.
No. 19-1502 Page 2
Harris’s counsel asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of
the case and addresses the issues that an appeal of this kind might be expected to
involve. Because the analysis appears thorough and Harris has not responded to
counsel’s motion, see CIR. R. 51(b), we limit our review to the subjects that counsel
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Harris could challenge his conviction. She does
not directly say whether Harris wishes to challenge his guilty plea. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71
(7th Cir. 2002). But counsel correctly determines that a challenge to the plea at this stage
would be futile because only resentencing was within the scope of the mandate.
See United States v. Dearborn, 873 F.3d 570, 573 (7th Cir. 2017). Harris waived any issues
surrounding his guilt by not raising them in his first appeal. See United States v. Whitlow,
740 F.3d 433, 438 (7th Cir. 2014).
Counsel also considers whether Harris could challenge the application of the
sentencing guidelines but properly rejects any such challenge as fruitless. First, the
district court properly calculated Harris’s guidelines range and, in any event, Harris
waived this challenge by not raising it in his first appeal. See Dearborn, 873 F.3d at 573.
Counsel then discusses possible challenges to Harris’s supervised release conditions
but, because Harris objected to them neither at the original proceeding nor on remand,
properly concludes that any such challenge would be frivolous. See United States v.
Flores, 929 F.3d 443, 450 (7th Cir. 2019).
Counsel next appropriately concludes that it would be frivolous for Harris to
challenge the substantive reasonableness of his sentence, which is 42 months below the
low end of the correctly calculated guidelines range of 70 to 87 months on each of the
carjacking convictions. Where, as here, the sentence falls below the guidelines range, we
presume that it is reasonable. See Rita v. United States, 551 U.S. 338, 347–56 (2007);
United States v. Chagoya-Morales, 859 F.3d 411, 424 (7th Cir. 2017). Counsel cannot
identify any grounds for overcoming that presumption, nor can we. See United States v.
Melendez, 819 F.3d 1006, 1014 (7th Cir. 2016). At resentencing, the district court properly
considered each relevant 18 U.S.C § 3553(a) sentencing factor, specifically discussing
Harris’s personal background (emphasizing his youth, remorse, and family ties but
weighing them against his lack of engagement in programming for substance abuse and
mental health issues), his criminal history (noting that he already had an extensive
record at a young age and committed the current offense only two months after he had
No. 19-1502 Page 3
gotten out of jail for a probation revocation), the circumstances of the offense
(discussing the trauma caused to the three victims by carjacking at gunpoint), and the
need to protect the public and adequately deter future criminal conduct (concluding
that a substantial prison sentence was necessary to deter further carjacking in the
community).
Finally, counsel considers arguing that Harris received inadequate
representation in the district court but appropriately concludes that this claim would be
better saved for collateral review. See Massaro v. United States, 538 U.S. 500, 508–09
(2003); United States v. Jones, 696 F.3d 695, 702 (7th Cir. 2012).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.