United States v. Triliegi, Peter

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2006
Decided November 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-1715
UNTIED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 04-CR-160
PETER TRILIEGI, Lynn Adelman,
Defendant-Appellant. Judge.
ORDER
Federal agents executing a search warrant found approximately 175
marijuana plants growing in an apartment above Peter Triliegi’s residence. Triliegi
confessed to growing the marijuana, and while he was detained in jail, agents
monitoring his telephone calls realized that he was also growing marijuana in
another location. They executed a second search warrant and recovered an
additional 200 marijuana plants at that location. Triliegi eventually pleaded guilty
to one count of manufacturing marijuana. See 21 U.S.C. § 841(a)(1). The district
court calculated a guidelines imprisonment range of 30 to 37 months, but because
Triliegi had a prior conviction for manufacturing marijuana, the court sentenced
him to the statutory minimum prison term of 10 years. See 21 U.S.C.
§§ 841(b)(1)(B)(vii), 851. Triliegi appeals, but his newly appointed appellate lawyer
has moved to withdraw under Anders v. California, 386 U.S. 738 (1967), because
No. 06-1715 Page 2
she cannot discern any nonfrivolous arguments to pursue. We invited Triliegi to
respond to counsel’s brief, see Cir. R. 51(b), but he did not do so. Accordingly, we
will consider only those potential issues identified in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether there are any potential challenges to
Triliegi’s conviction, but Triliegi does not want his guilty plea vacated and so
counsel appropriately avoids any discussion of the voluntariness of the plea or the
district court’s compliance with Federal Rule of Criminal Procedure 11. See United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Instead, counsel contemplates
whether Triliegi might argue that the district court erroneously denied his motions
to suppress the evidence recovered from his residence and the statements he made
via telephone from jail. But Triliegi entered an unconditional guilty plea, and thus
waived all challenges to nonjurisdictional defects occurring before the plea. See
Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006); United States v. Villegas, 388
F.3d 317, 322 (7th Cir. 2004). Accordingly, counsel properly concludes that any
potential challenge to these motions would be frivolous.
Counsel also examines whether Triliegi could argue that the court
erroneously denied his appointed trial lawyer’s motion to withdraw, which was
prompted by disagreement over counsel’s refusal to accede to Triliegi’s request that
he move to dismiss the indictment for vindictive prosecution. But trial counsel did
not assert that their disagreement caused a conflict of interest that might violate
Triliegi’s Sixth Amendment right to effective representation, and so Triliegi’s
unconditional guilty plea also would bar any challenge to the denial of the motion to
withdraw. See United States v. Porter, 405 F.3d 1136, 1140-41 (10th Cir. 2005);
United States v. Foreman, 329 F.3d 1037, 1039 (9th Cir. 2003). And even if this
potential argument was not foreclosed, it would be frivolous for Triliegi to argue
that the district court abused its discretion in refusing to let counsel withdraw. See
United States v. Harris, 394 F.3d 543, 552 (7th Cir. 2005). Triliegi had no right to
appointed counsel of his choice, nor could he compel his appointed counsel to file a
frivolous motion. See Oimen v. McCaughtry, 130 F.3d 809, 811 (7th Cir. 1997).
Counsel next considers whether there is any basis on which Triliegi might
attack his prison sentence. Counsel notes that Triliegi might argue that his prison
sentence is unreasonable under United States v. Booker, 543 U.S. 220 (2005), but
correctly concludes that such an argument would be frivolous given that Triliegi
received the minimum sentence required by statute. See United States v. Lee, 399
F.3d 864, 866 (7th Cir. 2005) (stating that “[n]othing in Booker gives a judge any
discretion to disregard a mandatory minimum”). Counsel also contemplates
whether Triliegi might argue that the ten-year term is so grossly disproportionate
to his crime that it violates the Eighth Amendment’s ban on cruel and unusual
No. 06-1715 Page 3
punishment. The “Eighth Amendment does not require strict proportionality
between crime and sentence,” and it is a “rare case in which a threshold comparison
of the crime committed and the sentence imposed leads to an inference of gross
disproportionality.” Ewing v. California, 538 U.S. 11, 23, 30 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 1001, 1005 (Kennedy, J., concurring in part
and concurring in judgment)); United States v. Gross, 437 F.3d 691, 692-93 (7th Cir.
2006). Because the Supreme Court has held that a prison term of 40 years for
possession with intent to distribute nine ounces of marijuana does not violate the
Eighth Amendment, see Hutto v. Davis, 454 U.S. 370, 371-72 (1982), any potential
Eighth Amendment challenge to Triliegi’s sentence would be frivolous.
Finally, counsel asks whether Triliegi could argue that the district court
erroneously denied his motion to compel “specific performance” of the plea
agreement by requiring the government to move for a reduced sentence to reflect
his purported substantial assistance in another case. See 18 U.S.C. § 3553(e). But
the plea agreement includes no cooperation provision or promise by the government
to make such a motion, and, accordingly, whether to do so was a decision solely
within the government’s discretion. See United States v. Miller, 458 F.3d 603, 604-
05 (7th Cir. 2006) (noting that government generally maintains broad discretion in
deciding whether to move for reduced sentence to reward substantial assistance);
United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999) (stating that “a
defendant’s rights under a plea agreement are limited by what the parties in fact
agreed to”). And the district court could not impose a sentence below the statutory
minimum without a motion from the government. See Melendez v. United States,
518 U.S. 120, 125-26 (1996); United States v. Rivera, 411 F.3d 864, 866 (7th Cir.
2005). Thus, counsel correctly concludes that a potential challenge to the district
court’s denial of the motion to compel would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.