United States v. Eric Middlebrook

NONPRECEDENTIAL DISPOSITION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 1, 2021
Decided November 2, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21‐1246
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v. No. 1:20CR00184‐001
ERIC MIDDLEBROOK, Tanya Walton Pratt,
Defendant‐Appellant. Chief Judge.
ORDER
Eric Middlebrook pleaded guilty to possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). He further pleaded
guilty to doing so on premises where children were present, subjecting him to an
additional consecutive sentence of up to five years under 21 U.S.C. § 860a. The district
court imposed a below‐guidelines sentence of 240 months’ imprisonment. Middlebrook
appeals, but his appointed lawyer asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Because counselʹs brief
appears thorough and addresses potential issues that an appeal of this kind would be
No. 21‐1246 Page 2
expected to involve, we limit our review to the subjects she discusses as well as those
raised by Middlebrook in his response under Circuit Rule 51(b). See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014). We agree with counsel that there are no nonfrivolous
issues on appeal and grant the motion.
Middlebrook pleaded guilty without a plea agreement. He agreed to the
government’s factual basis for the charges, conceding that federal agents discovered
firearms and about 3.7 kilograms of methamphetamine in his home and in a storage
unit he rented. His three children lived in the same home. A probation officer calculated
a range of 262 to 327 months’ imprisonment under the Sentencing Guidelines, based on:
the drug quantity; a reduction for acceptance of responsibility; and enhancements for
possession of firearms, maintaining a drug premises, and possession with intent to
distribute methamphetamine on premises where children reside. After neither side
objected, the district judge adopted the guidelines calculation.
Middlebrook requested a sentence of 180 months’ imprisonment, which he
argued would be sufficient to rehabilitate him. The judge agreed with Middlebrook that
a downward variance from the guidelines was appropriate because of Middlebrook’s
family ties, genuine remorse and acceptance of responsibility, and information in the
presentence report about his unstable childhood. But a sentence longer than 180
months’ imprisonment was necessary, the judge continued, because of the harm he
caused the community and the danger to which his drug operation exposed his
children. The judge ultimately sentenced him to 240 months’ imprisonment (180 under
§ 841(b)(1)(A), plus 60 under § 860a), which she believed was necessary to reflect the
seriousness of the offense and deter future offenses.
On appeal, counsel represents that she advised Middlebrook on the risks and
benefits of challenging his plea and confirmed that he does not wish to withdraw his
guilty plea. Middlebrook himself likewise raises in his response arguments related only
to his sentence. Counsel thus properly refrains from exploring the adequacy of the plea
colloquy or the voluntariness of Middlebrook’s plea. See United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first considers whether Middlebrook could attack the calculation of his
guidelines range but rightly concludes that any challenge would be frivolous.
Middlebrook did not object to the calculations at sentencing, so our review would be for
plain error. United States v. Thomas, 897 F.3d 807, 816 (7th Cir. 2018). We would find
none here. Based on Middlebrook’s admission that he possessed about 3.7 kilograms of
methamphetamine, the judge properly assessed a base offense level of 36, which applies
No. 21‐1246 Page 3
to any amount between 1.5 and 4.5 kilograms. U.S.S.G. § 2D1.1(c)(2). And each
enhancement that the judge applied (for firearms, id. § 2D1.1(b)(1), maintaining a drug
premises, id. § 2D1.1(b)(12), and having children present, id. § 2D1.1(b)(14)(B)) was
based on facts that Middlebrook conceded as part of his guilty plea. The judge also
properly awarded, upon the government’s motion, a full three‐level reduction for
Middlebrook’s acceptance of responsibility. U.S.S.G. § 3E1.1.
Middlebrook counters with two challenges that he says his lawyer overlooked,
but both are frivolous. First, he argues that the judge impermissibly punished him twice
for the same conduct—when calculating a base‐offense level that included his
conviction under § 860a, and when applying an enhancement under § 2D1.1(b)(14)(B)
for possessing with intent to distribute methamphetamine on premises where a minor
resides. But this type of “double counting” is “generally permissible unless the text of
the guidelines expressly prohibits it.” United States v. Edgeworth, 889 F.3d 350, 356
(7th Cir. 2018) (quoting United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012)). And
rather than prohibit double counting, the guidelines make this enhancement mandatory
for all defendants convicted under § 860a. U.S.S.G. § 2D1.1(b)(14)(B). Second,
Middlebrook argues that the judge inflated the drug quantity by including the weight
of legal vitamins that he planned to use to dilute the methamphetamine. But he waived
any challenge to the drug quantity when he stipulated to the same amount as part of the
presentence report and as part of the government’s factual basis for his guilty plea.
See United States v. Robinson, 964 F.3d 632, 640 (7th Cir. 2020); United States v. Paulette,
858 F.3d 1055, 1060 (7th Cir. 2017).
Counsel next considers and rightly rejects a potential challenge to the substantive
reasonableness of Middlebrook’s sentence. A below‐guidelines sentence, like
Middlebrook’s, is presumed reasonable on appeal against any attack that it is too high.
United States v. Patel, 921 F.3d 663, 672 (7th Cir. 2019). Here, the judge acknowledged
Middlebrook’s genuine remorse, difficult childhood, and close family ties, but she
found those factors outweighed by the seriousness of the offense (distributing “large
quantities of these highly addictive and destructive drugs. . . [that] ravage communities,
breed violence, and destroy families”), the need for deterrence, and the danger to which
Middlebrook exposed his children. See 18 U.S.C. § 3553(a). We agree with counsel that it
would be frivolous to argue that the judge needed to impose a sentence even lower than
Middlebrook’s already below‐guidelines sentence.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.