United States v. Kenneth Harris

NONPRECEDENTIAL DISPOSITION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
Argued December 14, 2011
Decided March 19, 2012
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11-1720
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:08-CR-88
KENNETH W. HARRIS,
Defendant-Appellant. Rudy Lozano,
Judge.
ORDER
Kenneth Harris pleaded guilty before a magistrate judge to conspiring to manufacture and
distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). After a full
colloquy, the magistrate judge recommended to the district court that it find that Harris
entered his plea knowingly and voluntarily, and thus that the plea should be accepted. Harris
lodged no objections to this recommendation. The district court accepted the plea and
sentenced Harris to 180 months’ imprisonment. Harris has now thought better of matters and
is seeking to invalidate his guilty plea. He forfeited that option, however, when he failed to
object to the magistrate judge’s recommendation. We therefore affirm the district court’s
judgment.
No. 11-1720 Page 2
Harris’s role in the meth business was that of a purchaser of the precursor chemicals that
are used; he was then paid with finished product. The record does not indicate what he did
with the drugs he received. Overall, he was responsible for 7.2 kilograms of
methamphetamine. After he was caught and indicted, he negotiated a plea agreement in which
he agreed to cooperate against his co-conspirators. In exchange, the government agreed to
dismiss certain charges and to recommend a prison sentence at the bottom of the advisory
guideline range.
When Harris appeared before a magistrate judge who was prepared to take his plea, the
judge asked him the usual series of questions required by Federal Rule of Criminal Procedure
11. Harris’s responses were perfunctory, but appropriate. As part of the colloquy, the
government summarized the evidence that it was prepared to produce against Harris at trial.
Afterward, the magistrate judge asked Harris for his own “version of the events.” Harris
answered, “I’m guilty, Your Honor.” After the colloquy, the magistrate judge prepared a
report and recommendation for the district judge. As required by 28 U.S.C. § 636(b)(1)(C), the
judge filed this document with the court and served copies on all the parties. The report
notified the parties that objections could be filed within a 10-day period (since revised to be
14 days, but that is of no importance), and it cautioned that objections would be waived if not
raised within that time. Harris neither filed any objections nor did he take any step to
withdraw his guilty plea. He similarly raised no objection to the probation officer’s
recommendation in the presentence investigation report that his offense level was 35, his
criminal history VI, and his imprisonment range was 292 to 365 months. He had nothing to say
about his plea at that juncture, and his counsel affirmatively stated that Harris was not
disputing the facts set out in the PSR or the accuracy of the officer’s guidelines calculation.
Based on all this, the district court accepted the plea. As required by the agreement, the
government moved for below-guideline sentence because of Harris’s substantial assistance,
and the court acquiesced, imposing a sentence of 180 months. This must have been a wake-up
call to Harris: after receiving that sentence, he wrote a letter to the district judge insisting that
his lawyer had misled him into believing that his sentence would be lower yet. The court did
not respond to the letter.
Assisted by new counsel, Harris has appealed. He would like to withdraw his guilty plea
and start over. He contends that he should receive this relief because the magistrate judge’s
plea colloquy was too terse, since it consisted of a series of questions seeking “yes” or “no”
answers rather than being a meaningful dialogue. The government responds that it is too late
for Harris to make this point. He had his opportunity when the magistrate judge’s report was
transmitted to the district court, and he failed to take it.
Whether we refer to this as waiver, as some cases do, see United States v. Hall, 462 F.3d 684,
No. 11-1720 Page 3
688 (7th Cir. 2006); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003), or as
forfeiture, in keeping with the usage the Supreme Court has recommended, see United States
v. Olano, 507 U.S. 725, 733 (1993), makes no difference here. Waived arguments are gone for
good, but relief from a forfeited argument may be granted only if the error was plain. Id. In
fact, Harris’s failure to move in the district court to withdraw his guilty plea is a second reason
why plain error is all that is left for him. See FED. R. C RIM . P. 52(b); United States v. Ali, 619 F.3d
713, 718-19 (7th Cir. 2010), cert. denied, 131 S. Ct. 965 (2011). If the worst he can say of the
colloquy he received is that it produced short responses, then there is no reason to suspect
error at all. He does not say that he misunderstood the judge, he does not say that he was
under some kind of incapacity, nor does he suggest any other serious flaw in the procedure.
The case of United States v. Frye, 738 F.2d 196, 201 (7th Cir. 1984), on which Harris relies, is
distinguishable. There the plea colloquy was conducted jointly for two co-defendants with
different levels of involvement in the same check-kiting scheme. Id. The two were represented
by the same counsel, who was obviously conflicted. Id.; see also United States v. Ray, 828 F.2d
399, 408 (7th Cir. 1987) (superseded by statute on unrelated point). Harris has pointed to
nothing comparable in his case sufficient to persuade us that he should be relieved of the
consequences of his failure to object at a time when corrective action could easily have been
taken in the district court.
The judgment of the district court is A FFIRMED.