United States v. Howard Fleming ( 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NONPRECEDENTIAL DISPOSITION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 September 2, 2020
Decided September 3, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19‐2271
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
South Bend Division.
v. No. 3:18CR127‐001
HOWARD FLEMING, III, Jon E. DeGuilio,
Defendant‐Appellant. Chief Judge.
ORDER
Howard Fleming pleaded guilty to possessing a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c), and possessing a firearm as a felon, 18 U.S.C.
§ 922(g), and received a sentence of 97 months’ imprisonment. Although, in his plea
agreement, Fleming expressly waived his right to appeal his conviction and “all
components of his sentence,” he filed a notice of appeal. His appointed counsel asserts
that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738,
746 (1967). Counsel’s brief explains the nature of the case and addresses potential issues
that an appeal of this kind would be expected to involve. Because her analysis appears
thorough, and Fleming has not responded to her motion, see CIR. R. 51(b), we limit our
No. 19‐2271 Page 2
review to the subjects counsel discusses. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
Counsel consulted with Fleming about whether he would like to withdraw his
plea and the risks of doing so. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012). Fleming proposed arguing that his plea is invalid because the district court did
not confirm what we now know to be an element of his § 922(g) charge: At the time he
possessed the firearm, Fleming knew that he had a prior conviction for a crime
punishable by a term of imprisonment greater than a year. See Rehaif v. United States,
139 S. Ct. 2191, 2196 (2019); see also United States v. Maez, 960 F.3d 949, 955 (7th Cir. 2020)
(Rehaif “requires knowledge only of status, not knowledge of the § 922(g) prohibition”).
Counsel appropriately concludes that this argument would be frivolous. Because
Fleming did not move to withdraw his plea in the district court, we would review the
validity of the plea for plain error. See United States v. Payne, 964 F.3d 652, 655 (7th Cir.
2020). We have said that the failure to advise a defendant that the government would
have to prove his knowledge of his felon status is a clear error. See id. But to establish
prejudice, Fleming would need to show that there is a reasonable probability he would
have insisted on going to trial (or held out for a better deal) if he had known of the
Rehaif requirement. See United States v. Williams, 946 F.3d 968, 973 (7th Cir. 2020). Such a
probability exists if a reasonable jury could believe that a defendant was ignorant of his
prior felony conviction. Payne, 964 F.3d at 655. Fleming previously spent more than a
year in prison on a three‐year sentence for an aggravated battery, so it is implausible
that when he committed the current offense, he was unaware that he had a prior
conviction for a crime punishable by more than a year in prison. See Williams, 946 F.3d
at 973. Therefore, any argument that the Rehaif error affected Fleming’s substantial
rights or the fairness of the proceedings would be futile. See United States v. Dowthard,
948 F.3d 814, 818 (7th Cir. 2020).
Counsel next considers whether Fleming could challenge his sentence but rightly
concludes that doing so would be frivolous given the explicit waiver of his right to
appeal. An appeal waiver “stands or falls” with the plea agreement of which it is part.
United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011) (quoting United States v.
Whitlow, 287 F.3d 638, 640 (7th Cir. 2002)). If a defendant knowingly and voluntarily
entered into the agreement, therefore, the waiver is enforceable. See id.Here, as counsel explains, the magistrate judge who conducted the
change‐of‐plea hearing and recommended that the district judge accept the plea
No. 19‐2271 Page 3
ensured that Fleming understood the appeal waiver and the rights that he gave up by
pleading guilty. See FED. R. CRIM. P. 11; United States v. Gonzalez, 765 F.3d 732, 741
(7th Cir. 2014). We note that the magistrate judge omitted certain admonishments from
the Rule 11 colloquy, but the omissions cannot be said to have affected the
voluntariness of the plea. The magistrate judge did not inform Fleming that non‐citizens
may be removed from the United States if convicted or that the district court could
order restitution or forfeiture. See FED. R. CRIM. P. 11(b)(1)(J),(K),(O). But because
Fleming is a citizen and the district court ordered neither, these admonishments were
irrelevant. It would be frivolous to argue that Fleming was prejudiced by their
omission.
Finally, counsel rightly rejects the argument that there is a basis for not enforcing
the appeal waiver. See United States v. Campbell, 813 F.3d 1016, 1017 (7th Cir. 2016).
Fleming’s sentence is below the statutory maximum, and the court did not consider any
constitutionally impermissible factors at sentencing. See id. at 1018.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.