United States v. April Cole

NONPRECEDENTIAL DISPOSITION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 29, 2012
Decided December 10, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-1601
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:11CR00205-001
APRIL L. COLE,
Defendant-Appellant. Sarah Evans Barker,
Judge.
ORDER
April Cole participated in a scheme in which “runners” cashed hundreds of false
checks worth over $250,000, and eventually pleaded guilty to knowingly transferring false
drivers’ licenses, 18 U.S.C. § 1028(a)(2). The district court sentenced her to 36 months’
imprisonment, the high end of a guidelines range that was increased for her role in
organizing the scheme. See U.S.S.G. § 3B1.1(c). Cole filed a notice of appeal, but Cole’s
attorney asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California,
386 U.S. 738 (1967). Cole opposes this motion. See CIR. R. 51(b). We confine our review to
the potential issues identified in counsel’s facially adequate brief and in Cole’s response.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 12-1601 Page 2
Cole does not want her guilty plea set aside, and so counsel appropriately omits
from his brief any discussion about the adequacy of the plea colloquy or the voluntariness
of the guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel and Cole first consider arguing that the district court erred by imposing a 2-
level increase for Cole’s role as organizer. See U.S.S.G. § 3B1.1(c). They point out that the
government agreed with Cole to recommend a guidelines calculation that did not include
this increase. But such agreements do not bind district courts, see FED. R. CRIM. P.
11(c)(1)(B); United States v. Winters, 695 F.3d 686, *5–6 (7th Cir. 2012); United States v.
Mankiewicz, 122 F.3d 399, 403 n.1 (7th Cir. 1997), and the agreement here explicitly stated
that the court would calculate the applicable guidelines range. The evidence, moreover,
supports the court’s conclusion that Cole was an organizer. A defendant is an organizer if
she planned the crime or coordinated others to carry it out. U.S.S.G. § 3B1.1(c) cmt. n.4;
United States v. Knox, 624 F.3d 865, 874 (7th Cir. 2010); United States v. Doe, 613 F.3d 681, 687
(7th Cir. 2010). Cole planned the crime: using her own equipment, she made the false
checks and matching false IDs, which she gave to runners, who then brought her the
money cashed from the checks; she in turn paid the runners and split the remainder of the
money between herself and another organizer.
Counsel next considers challenging Cole’s prison term as unreasonable, but
concludes that such a challenge would be frivolous. The term is presumed reasonable
because it is within the guidelines range, see Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010), and counsel has not identified any
reason to set aside that presumption, nor can we. Looking to 18 U.S.C. § 3553(a), the court
recognized that it was unlikely that Cole would commit additional crimes, but decided that
a 36-month sentence was necessary for the purposes of general deterrence and punishing
Cole.
Last, counsel considers arguing that the quality of his legal representation of Cole in
the district court was deficient. But counsel correctly recognizes that he cannot be expected
to challenge his own performance, see United States v. Rezin, 322 F.3d 443, 445 (7th Cir.
2003), and that any ground for questioning his assistance would be more appropriately
pressed in a collateral proceeding, see Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Persfull, 660 F.3d 286, 299 (7th Cir. 2011).
The motion to withdraw is GRANTED and the appeal is DISMISSED.