United States v. Hubert Davenport

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3358
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
H UBERT T. D AVENPORT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:11-cr-50002-1—Philip G. Reinhard, Judge.
S UBMITTED A PRIL 25, 2013—D ECIDED M AY 22, 2013
Before C UDAHY, R IPPLE and H AMILTON, Circuit Judges.
P ER C URIAM. Hubert Davenport decided to show off
his gun to his friends at a bar one night. A bar employee
observed him and called the police, and Mr. Davenport,
a felon on probation, was arrested and charged with
violating 18 U.S.C. § 922(g)(1). He pleaded guilty and
was sentenced as an armed career criminal to 192
months’ imprisonment. See id. § 924(e). Mr. Davenport
then filed a notice of appeal, but his appointed lawyer
2 No. 12-3358
contends that the appeal is frivolous and seeks to with-
draw under Anders v. California, 386 U.S. 738 (1967).
Mr. Davenport has not responded to counsel’s submis-
sion. See Cir. R. 51(b). We confine our review to the po-
tential issues identified in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002).
Counsel begins by addressing whether Mr. Davenport
could challenge his conviction. Although she neglects
to say whether she complied with this court’s require-
ment that she first ask him whether he wants his guilty
plea set aside, see United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670-
71 (7th Cir. 2002), this omission does not mean that
we must deny the Anders motion. If the transcript of the
plea colloquy shows that a challenge to the voluntariness
of the plea would be frivolous, the motion may be
granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d
at 974.
A challenge to the voluntariness of a guilty plea neces-
sarily is frivolous if the district court substantially com-
plied with Federal Rule of Criminal Procedure 11 when
accepting the plea. Konczak, 683 F.3d at 349-50; Schuh,
289 F.3d at 974. And our review of Mr. Davenport’s plea
colloquy would be even more deferential—confined to a
search for plain error—because he did not move in the
district court to withdraw his guilty plea. See United
States v. Vonn, 535 U.S. 55, 62-63 (2002); United States v.
Kilcrease, 665 F.3d 924, 927 (7th Cir. 2012). An error is not
plain unless it is obvious, affected the defendant’s sub-
No. 12-3358 3
stantial rights and seriously undermined the fairness or
integrity of the proceedings. Vonn, 535 U.S. at 62-63; United
States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th Cir. 2010);
United States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010).
Mr. Davenport could not meet the stringent plain-error
standard on the record before us. The district court en-
sured that he understood the charge against him, Fed. R.
Civ. P. 11(b)(1), the penalties he faced (from 15 years to
life in prison, a fine of up to $250,000, and up to 5 years
of supervised release), id. at (H)-(M), and the various
trial and appellate rights he was waiving by pleading
guilty, id. at (B)-(F). The court’s single omission from
the list of waived rights was Davenport’s right to testify
if he went to trial, id. at (E), but such an oversight will
not constitute plain error unless the error actually
renders the defendant’s conviction unjust. United States
v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004); United States
v. Driver, 242 F.3d 767, 771 (7th Cir. 2001). In Mr. Daven-
port’s case, the court’s omission does not even
arguably render his conviction unjust; the evidence of
his guilt was overwhelming, and the right not men-
tioned during the colloquy is one commonly known
to defendants. See Driver, 242 F.3d at 771. Moreover,
Mr. Davenport was informed of his right to present
witnesses if he went to trial, and nothing in the
record suggests that he was unaware that he himself
could be one of those witnesses. We thus agree with
counsel that it would be frivolous for Mr. Davenport
to challenge the voluntariness of his guilty plea. We
note, however, that these kinds of omissions occur all
4 No. 12-3358
too frequently during plea colloquys, and we caution
district courts to use more care. Not every omission will
be harmless, and full compliance with Rule 11 is easily
achieved.
Next counsel addresses whether Mr. Davenport could
challenge his prison sentence but concludes that an
appellate claim would be frivolous. The district court,
counsel explains, correctly calculated Mr. Davenport’s
imprisonment range under the guidelines, applied the
sentencing factors of 18 U.S.C. § 3553(a), and then sen-
tenced Mr. Davenport to a within-guidelines sentence
that is entitled to a presumption of reasonableness.
Again we agree with counsel’s assessment. The district
court calculated a guidelines imprisonment range of 188
to 235 months based on a total offense level of 31 and a
criminal history category of VI, both of which are cor-
rect. The offense level reflects that Mr. Davenport,
because he previously had been convicted of at least
three violent felonies or serious drug offenses, is an
armed career criminal, see 18 U.S.C. § 924(e)(1); U.S.S.G.
§ 4B1.4(b)(3)(B), and it also reflects that he accepted
responsibility, which earned him a two-level reduction,
see id. § 3E1.1(a). The criminal history category of VI
is based on a correct calculation of 14 criminal history
points. Two of those points were assessed because
Mr. Davenport was on probation at the time of his
arrest, U.S.S.G. § 4A1.1(d), and the others resulted
from qualifying convictions for which he was sen-
tenced within the time limits prescribed in § 4A1.1(e).
Mr. Davenport did object to the counting of one of his
prior drug convictions under § 924(e) on the ground that
No. 12-3358 5
he had received a “restoration of rights” letter from the
state regarding it. See Buchmeier v. United States, 581
F.3d 561, 565 (7th Cir. 2009) (en banc); United States v.
Vitrano, 405 F.3d 506, 510 (7th Cir. 2005). The court con-
cluded that Mr. Davenport’s rights had not been fully
restored because the letter did not restore his right to
vote, see United States v. Adams, 698 F.3d 965, 967-68
(7th Cir. 2012); United States v. Burnett, 641 F.3d 894,
897 (7th Cir. 2011), but more importantly, the court rec-
ognized that Mr. Davenport had three qualifying con-
victions even without counting the questionable one.
(While these particular convictions were too old
to garner criminal history points, the Armed Career
Criminal Act places no limit on the age of convictions.
See United States v. Foster, 652 F.3d 776, 792-93 (7th
Cir. 2011); United States v. Wright, 48 F.3d 254, 255-56
(7th Cir. 1995).)
The district court also adequately applied the sen-
tencing factors of 18 U.S.C. § 3553(a). On one hand, the
court explained, Mr. Davenport had not threatened
anyone with his gun, had not been arrested for a
felony since 2006 and had obtained letters from friends
and family seeking leniency for him, but on the other
hand, he has an extensive criminal history and engaged
in conduct that must be deterred. The court thus
decided on a prison sentence of 192 months, just four
months above the bottom of the guidelines range and
one year above the statutory minimum of 15 years set
by § 924(e). Under these circumstances, Mr. Davenport
would not be able to rebut the presumption of reason-
ableness to which a within-guidelines sentence is enti-
6 No. 12-3358
tled. See Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.
2011).
Accordingly, we grant counsel’s motion to withdraw
and dismiss the appeal.
5-22-13