United States v. Mario Price ( 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NONPRECEDENTIAL DISPOSITION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 November 2, 2020
Decided November 3, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1488
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 1:18-CR-00722(1)
MARIO PRICE, Edmond E. Chang,
Defendant-Appellant. Judge.
ORDER
While on supervised release for battering a police officer, Mario Price was caught
with a loaded handgun. He pleaded guilty to possessing a firearm as a felon. See 18
U.S.C. § 922(g)(1). The district court sentenced him to 48 months in prison minus time
already spent in custody. See U.S.S.G. § 5K2.23. Price filed a notice of appeal, but his
appointed counsel asserts that the appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). Price has not responded to counsel’s motion.
See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses the
potential issues that an appeal of this kind might involve. Because counsel’s analysis
No. 20-1488 Page 2
mostly appears thorough, we focus our review on the issues he discusses. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Price could challenge his guilty plea. But counsel
does not tell us, as he should, that he consulted with Price and provided advice about
the risks and benefits of challenging the plea. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel’s
oversight is harmless, however, because we agree with counsel that any challenge to the
guilty plea would be frivolous. Based on our review of the plea colloquy, we are
satisfied that the district court conducted a plea colloquy that substantially complied
with the requirements of Federal Rule of Criminal Procedure 11 to ensure that the plea
was knowing and voluntary. We note that Price did not move in the district court to
withdraw his guilty plea, so we would review his plea colloquy for plain error. United
States v. Williams, 946 F.3d 968, 971 (7th Cir. 2020). During the colloquy, the court
neglected to discuss forfeiture or a special assessment, see FED. R. CRIM. P. 11(b)(1)(J),
(L), but this omission was harmless because Price was already aware of this information
through the forfeiture and special-assessment provisions of his written plea
agreement—provisions that he testified he had reviewed with counsel and understood.
See United States v. Adams, 746 F.3d 734, 746–47 (7th Cir. 2014). Further, Price could not
argue under Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), that the court failed to
inform him of the government’s burden to prove knowledge of his felon status because
the court did in fact convey that information.
Next, counsel considers whether Price could challenge his plea on grounds that
the court applied a sentencing guidelines range (46–57 months’ imprisonment) higher
than the range contemplated in the plea agreement (37–46 months). The discrepancy
stemmed from two juvenile convictions not contemplated in the plea agreement that
added three points—counsel mistakenly says one conviction adding two points—to
Price’s criminal-history computation, boosting his criminal-history category from IV to
V. But counsel appropriately rejects raising this challenge as frivolous. Not only did the
plea agreement specify that the guideline calculations were preliminary and non-
binding, but Price assented at his change-of-plea hearing that any revision in the court’s
final calculations would not justify withdrawing the plea.
Counsel then considers whether Price could make any nonfrivolous challenge to
his sentence and correctly concludes that he could not. As counsel explains, the district
court properly calculated a 46–57 months’ range based on an offense level of 17 and
criminal history category of V. See U.S.S.G. § 5A. Price’s 48-month sentence is within the
No. 20-1488 Page 3
guidelines range, so we would presume it to be reasonable, see United States v. Taylor,
907 F.3d 1046, 1051 (7th Cir. 2018), and like counsel we see no basis in the record that
might rebut that presumption. The court adequately considered the factors set forth in
18 U.S.C. § 3553(a), emphasizing the seriousness of the offense and the need for
deterrence (Price’s previous three-year sentence had not deterred him from carrying a
loaded firearm on the streets of Chicago only three months after his release from
prison), as well as Price’s personal characteristics (having a difficult childhood and
suffering from mental illnesses that likely contributed to some of his previous criminal
behavior).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.