United States v. Douglas M. Veach

NONPRECEDENTIAL DISPOSITION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 June 3, 2019
Decided June 4, 2019
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2651
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:15‐cr‐16
DOUGLAS M. VEACH, William T. Lawrence,
Defendant‐Appellant. Judge.
ORDER
Douglas Veach pleaded guilty to possessing with intent to distribute 500 or more
grams of methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(A); carrying a firearm during a
drug‐trafficking crime, 18 U.S.C. § 924(c); and possessing a firearm as a felon,
id. § 922(g)(1). The district court imposed a below‐guidelines prison sentence and five
years of supervised release. Veach filed a notice of appeal, but his appointed counsel
asserts that the appeal is frivolous and moves to withdraw. See Anders v. California,
386 U.S. 738 (1967). Veach opposes counsel’s motion. See CIR. R. 51(b). Counsel’s
submission explains the nature of the case and addresses the issues that an appeal of
this kind would be expected to involve. Because the analysis appears thorough, we limit
No. 18‐2651 Page 2
our review to the subjects that counsel discusses plus the issues that Veach identifies in
his response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Police officers obtained an arrest warrant alleging parole violations and arrested
Veach as he left a hotel carrying a duffel bag. The officers discovered a gun and two
pounds of methamphetamine in the bag. Veach moved to suppress these items on the
ground that the warrant was invalid—he argued that, at the time of the arrest, he had
already been served with a valid arrest warrant and then freed on bond, and there was
no evidence a second arrest warrant had been properly issued. The district court denied
his motion, ruling that the arrest warrant was valid and that, even if not, the good‐faith
exception to the exclusionary rule applied. Veach then unconditionally pleaded guilty,
without an agreement with the government. He did not object to the presentence
investigation report, and he agreed with the probation officer that he qualified as a
career offender because of two prior robbery convictions. See U.S.S.G. § 4B1.1. The
district court accepted the undisputed Guidelines range of 352 to 425 months’
imprisonment and imposed a sentence of 268 months.
Veach now wishes to withdraw his guilty plea, so counsel first considers whether
Veach could argue that his plea was not knowing and voluntary. See United States
v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Because he did not move to withdraw his
guilty plea in the district court, our review would be for plain error. United States
v. Adams, 746 F.3d 734, 746 (7th Cir. 2014). The transcript of the colloquy reflects that the
judge substantially complied with the requirements of Rule 11 of the Federal Rules of
Criminal Procedure. Counsel identifies just one omission: although the judge asked
Veach if anyone had threatened or forced him to plead guilty, he neglected to query
whether Veach’s plea “result[ed] from … promises.” See FED. R. CRIM. P. 11(b)(2). Veach
proposes arguing that his plea was not knowing and voluntary because his attorney
“promised” him that he still could appeal the denial of his motion to suppress evidence.
That advice, if given, was incorrect; Veach waived the right to appeal pretrial rulings
with his unconditional plea, and for that reason, as counsel correctly explains, it would
be frivolous to challenge the denial of the suppression motion on appeal. See FED. R.
CRIM. P. 11(a)(2); United States v. Adigun, 703 F.3d 1014, 1018–19 (7th Cir. 2012).
Moreover, Veach never attested that he would not have pleaded guilty had the
judge asked him about “promises.” See Vinyard v. United States, 804 F.3d 1218, 1226–27
(7th Cir. 2015) (finding that challenge to guilty plea based on limited record would be
frivolous). His unsworn assertion contradicts his under‐oath statement that he was
pleading guilty voluntarily and is not the “substantial evidence” needed to support a
No. 18‐2651 Page 3
request to withdraw the plea. Without that evidence, it would be frivolous to argue that
the district court’s failure to mention “promises” was a plain error rendering Veach’s
plea unknowing or involuntary. See United States v. Austin, 907 F.3d 995, 1000 & n.2
(7th Cir. 2018); United States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016).
Veach’s real problem appears to be with the advice of counsel, and, indeed, he
wishes to argue on appeal that he would not have pleaded guilty but for the ineffective
assistance of his attorney in telling him that he could still appeal the denial of his
suppression motion. We do not comment on whether Veach’s ineffective‐assistance
argument lacks merit in the abstract, but it would be certain to fail if raised on direct
appeal because there is no record to support it. See Massaro v. United States, 538 U.S. 500,
504–05 (2003); Vinyard, 804 F.3d at 1226–27. Neither Veach nor his lawyer has submitted
evidence about the circumstances surrounding the decision to unconditionally plead
guilty. We therefore agree with counsel that Veach’s ineffective‐assistance argument is
best left for a collateral attack. (We also note that there is no procedural default for
failure to raise an ineffective‐assistance claim on direct appeal. Massaro, 538 U.S. at 504.)
Next, counsel considers and rightly rejects a challenge to the district court’s
conclusion that there was a factual basis for Veach’s conviction under 18 U.S.C. § 924(c)
for possessing a firearm in furtherance of a drug crime. Veach agreed with the
government that he possessed distribution quantities of methamphetamine and that the
gun was found with those drugs in the duffel bag that he was holding at the time of his
arrest. “That proximity is sufficient to establish a violation of § 924(c)(1).” United States
v. Franklin, 547 F.3d 726, 732 (7th Cir. 2008); cf. U.S.S.G. § 2K2.1 cmt. application n.14(B)
(sentencing enhancement for possessing firearm in connection with drug offense
applies when firearm “is found in close proximity to drugs”).
Counsel also finds no viable challenge to Veach’s sentence. Without objection
from Veach, the court calculated the guidelines range based on a statutory mandatory
consecutive sentence of 60 months for the § 924(c) charge and, for the other two charges,
an offense level of 35 and criminal history category of VI because of Veach’s career‐
offender status. See 18 U.S.C. § 924(c); U.S.S.G. § 4B1.1(b). Counsel finds no error to raise
in connection with this calculation. Further, we would presume that Veach’s below‐
guidelines sentence is reasonable, see United States v. White, 868 F.3d 598, 603 (7th Cir.
2017), and counsel cannot identify any ground for overcoming that presumption here.
We agree with her assessment. The judge addressed Veach’s principal arguments and
appropriately considered the factors in 18 U.S.C. § 3553(a) by discussing Veach’s
criminal history (highlighting the escalating nature of his crimes since he was a
No. 18‐2651 Page 4
teenager), the nature and circumstances of his offense (commenting that drug offenses
are “indeed serious” and affect people in the community), and the need to protect the
public by imposing a sufficiently long sentence. See United States v. Reyes‐Medina,
683 F.3d 837, 842–43 (7th Cir. 2012).
Counsel also considers an argument that the district court reversibly erred by not
personally informing Veach that he could allocute. Federal Rule of Criminal
Procedure 32(i)(4)(A)(ii) provides that the court must “address the defendant personally
in order to permit the defendant to speak or present any information to mitigate the
sentence.” The district court personally addressed Veach throughout the hearing and
allowed him to comment and ask questions. Then Veach’s attorney announced that
Veach wished to address the court, and Veach allocuted for what amounts to eight
pages of the sentencing transcript. He spoke about his lifelong struggle with drug
addiction, his family issues, his prior crimes, and his efforts at rehabilitation; he then
asked for the minimum sentence. Veach thus had ample opportunity to speak and
present relevant information, and it would be frivolous to argue that he did not have
the chance to give a meaningful allocution simply because his lawyer, not the district
judge, initiated it. See United States v. Panice, 598 F.3d 426, 438 (7th Cir. 2010).
Finally, Veach wishes to raise the argument that the district court lacked
“subject‐matter jurisdiction” because the government never established the injury
required for “standing.” But in a criminal prosecution, the public, in addition to any
specific victim, is the injured party, and the United States has a legitimate interest in the
enforcement of its criminal laws on behalf of its citizens. See Rinaldi v. United States,
434 U.S. 22, 28 (1977). The district courts, moreover, “have original jurisdiction … of all
offenses against the laws of the United States.” 18 U.S.C. § 3231.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.