United States v. Hutchings, Kevin G.

NONPRECEDENTIAL DISPOSITION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 March 20, 2007
Decided March 21, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3260
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of
Illinois
v.
No. 1:05-CR-10061-MMM-JAG-1
KEVIN G. HUTCHINGS,
Defendant-Appellant. Michael M. Mihm,
Judge.
ORDER
Kevin G. Hutchings pleaded guilty to one count of conspiracy to distribute
methamphetamine and cocaine. See 21 U.S.C. §§ 846, 841(a)(1). During the plea
colloquy Hutchings admitted that the conspiracy involved more than five kilograms
of cocaine. The district court calculated a total offense level of 37 and a criminal
history category of VI, which yielded a guidelines imprisonment range of 360
months to life. But Hutchings had multiple prior convictions for felony drug
offenses, and given the drug quantity the court was statutorily required to sentence
him to a term of life imprisonment, id. § 841(b)(1)(A), which it did. Hutchings
appeals, but his attorney moves to withdraw under Anders v. California, 386 U.S.
738 (1967), because he cannot discern any nonfrivolous grounds for appeal. We
No. 06-3260 Page 2
invited Hutchings 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 Hutchings’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th
Cir. 2002).
In his Anders brief, counsel considers whether Hutchings might challenge the
voluntariness of his guilty plea. But Hutchings has given no indication that he
wishes to have his plea vacated, and thus we need not consider this potential
argument. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel and Hutchings also consider arguing that there is a double jeopardy
violation arising out of Hutchings’s conviction in the United States District Court
for the Northern District of Ohio in 2003 for possession with intent to distribute two
kilograms of cocaine. Hutchings asserts that his sales of drugs in Ohio and Illinois
were part of the same conspiracy and therefore should not have been charged as
separate crimes. But even if Hutchings’s assertion is true, a substantive crime and
a conspiracy to commit that crime are separate offenses, United States v. Felix, 503
U.S. 378, 389 (1992), and thus his claim would be meritless. Regardless, Hutchings
waived any potential double jeopardy claim by entering an unconditional plea of
guilty. United States v. Broce, 488 U.S. 563, 571 (1989); Gomez v. Berge, 434 F.3d
940, 943 (7th Cir. 2006).
Counsel and Hutchings also consider whether Hutchings might argue that he
was denied his right to a speedy trial. But as counsel notes, Hutchings never moved
to dismiss the indictment on the ground that his prosecution violated the Speedy
Trial Act, and thus he waived any statutory argument on appeal. See 18 U.S.C.
§ 3162(a)(2); United States v. White, 443 F.3d 582, 589 (7th Cir. 2006). Nor can
Hutchings make out a violation of his speedy trial right under the Sixth
Amendment because his guilty plea waived any such claim. United States v.
Gaertner, 583 F.2d 308, 311 (7th Cir. 1978). A speedy-trial claim thus would be
frivolous.
Counsel and Hutchings also consider whether Hutchings might argue that
the lapse of time between the alleged end of the conspiracy “in or about 2003” and
the return of the indictment in August 2005 violated his right to due process. In his
Rule 51(b) response, Hutchings asserts that the delay of approximately two years
deprived him of “a chance to cooperate for a lighter sentence.” The statute of
limitations for a particular crime is the primary protection against unreasonable
prosecutorial delay, though a defendant can establish a due process violation if the
delay “caused actual and substantial prejudice to the defendant’s right to a fair
trial.” United States v. Henderson, 337 F.3d 914, 919–20 (7th Cir. 2003). The
defendant cannot rely on mere speculative harm but must establish prejudice with
specific facts supported by evidence. Id. at 920. Here, Hutchings’s right to a fair
No. 06-3260 Page 3
trial was not prejudiced because he elected to plead guilty rather than go to trial.
And missing out on a speculative opportunity to cooperate with the government is
not the same as being actually prejudiced at trial. In any event, Hutchings’s
unconditional guilty plea waived any claim of pre-indictment delay on appeal. See,
e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Cain, 134 F.3d
1345, 1352–53 (8th Cir. 1998); Tiemens v. United States, 724 F.2d 928, 929 (11th
Cir. 1984) (per curiam). Thus, this potential argument would be frivolous.
Counsel also considers arguing that a mandatory term of life imprisonment
for a non-violent offense is a disproportionate sentence which violates the Eighth
Amendment’s bar on cruel and unusual punishment. But the Supreme Court has
rejected the argument that a sentence which is not otherwise cruel and
unusual—such as life in prison—becomes so simply because it is mandatory.
Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991). And we have explicitly rejected
the argument that life imprisonment without the possibility of parole for drug
trafficking is cruel and unusual punishment in violation of the Eighth Amendment.
United States v. Kramer, 955 F.2d 479, 488 (7th Cir. 1992); see also United States v.
Cannon, 429 F.3d 1158, 1161 (7th Cir. 2005).
Hutchings also raises the potential argument that law enforcement agents,
after becoming aware of his illegal activities, improperly allowed him to continue
selling drugs for approximately seven months so that the drug quantity would be
high enough to yield a life sentence. But it is within the discretion of law
enforcement to decide whether delaying the arrest of a suspect will help ensnare co-
conspirators, give the police a better understanding of the nature of the criminal
enterprise, or merely allow the suspect enough “rope to hang himself.” United
States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006); United States v. Garcia, 79
F.3d 74, 76 (7th Cir. 1996). So this contention is also frivolous.
Finally, counsel and Hutchings consider whether Hutchings could argue that
he received ineffective assistance of counsel. In his Rule 51(b) response, Hutchings
alleges that trial counsel “never once discussed a defense or encouraged me to wait
for a plea agreement.” A defendant who claims that his guilty plea was induced by
his lawyer’s deficient performance must show that counsel’s performance was
objectively unreasonable and that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S.
52, 57–58 (1985); Bethel v. United States, 458 F.3d 711, 716–17 (7th Cir. 2006). We
have said repeatedly, however, that ineffective-assistance claims are better saved
for collateral attacks under 28 U.S.C. § 2255 where the factual record can be fully
developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United
States v. Spence, 450 F.3d 691, 694 (7th Cir. 2006). Therefore we do not address
Hutchings’s ineffective assistance claim and, if he wishes, he may raise it in a
subsequent § 2255 motion.
No. 06-3260 Page 4
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.