287 F.3d 667 (7th Cir. 2002), 01-3099, U.S. v. Knox

Docket Nº:01-3099
Citation:287 F.3d 667
Party Name:U.S. v. Knox
Case Date:April 29, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 667

287 F.3d 667 (7th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry D. KNOX, Defendant-Appellant.

No. 01-3099.

United States Court of Appeals, Seventh Circuit

April 29, 2002

Submitted March 26, 2002.

Rehearing Denied May 28, 2002. [*]

Page 668

[Copyrighted Material Omitted]

Page 669

Michael C. Carr (submitted), Office of U.S. Atty., Benton, IL, for U.S.

Larry D. Knox (submitted), Forrest City, AR, pro se.

Before POSNER, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Following his indictment on three counts of peddling crack cocaine, see 21 U.S.C. § 841(a)(1), Larry Knox pleaded guilty. His reward was a three-level subtraction for acceptance of responsibility. See U.S.S.G. § 3E1.1(b). That reduction sliced at least 84 months off his punishment: his sentence was 240 months (from a range of 235-293 months), while the range without the credit would have been 324-405 months. Believing that his sentence should have been lower still, Knox instructed his lawyer to file a notice of appeal.

Representing that he cannot identify any non-frivolous issue, counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking our permission to withdraw. One question that counsel considers is whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), could be used to cut down the sentence. Counsel believes that any such argument would be futile, an accurate assessment. Apprendi holds that facts that increase the statutory maximum punishment must be established to the satisfaction of the trier of fact beyond a reasonable doubt. But the statutory maximum for distributing any amount of cocaine is 240 months' imprisonment, see 21 U.S.C. § 841(b)(1)(C), and Knox was convicted on three counts, so for him the maximum is 60 years (720 months). Although the courts of appeals do not agree whether, in the wake of Apprendi, U.S.S.G. § 5G1.2(d) still compels a judge to use consecutive sentences when necessary to construct a term within the Guideline range, compare United States v. Angle, 254 F.3d 514, 518-19 (4th Cir. 2001) (en banc) (yes), with United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001) (no), every court of appeals believes that consecutive sentences are lawful if the district judge chooses to impose them. See United States v. Buckland, 277 F.3d 1173, 1184-86 (9th Cir. 2002) (en banc) (collecting authority); United States v. Bradford, 246 F.3d 1107, 1114 (8th Cir. 2001). For Knox it was possible to sentence within the 235-293 month range without consecutive terms, and the district judge chose that option. Apprendi poses no conceivable obstacle. See Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000).

Next counsel asks whether there is a non-frivolous objection to the calculations that produced the 235-293 month range. Two elements dominated: the quantity of cocaine included in Knox's relevant conduct and a two-level addition under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm. Counsel concludes that there is no prospect of upending the sentence, and again we agree. Findings of fact about

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relevant conduct may be upset only for clear error, see United States v. Johnson, 227 F.3d 807, 812-13 (7th Cir. 2000), and these findings--based as they were on the district judge's decision to believe two persons who testified about their dealings with Knox--are all but impossible to upset. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). One of these witnesses testified that she accompanied Knox on two trips to buy cocaine and then transported drugs for him; the second witness testified that Knox had traded a gun for crack. Far from providing grounds to reduce the sentence, these facts suggest that Knox received a break. The 397 grams of crack that the district judge found to be Knox's relevant conduct represented just two transactions about which the first witness testified. Although the evidence at sentencing shows that Knox conducted a drug-distribution business, the full scope of which must have exceeded 500 grams, his sentence was based on the range for 150 to 499 grams. Other potential lines of argument that counsel evaluates would be even weaker, because not raised at all in the district court. Indeed, Knox and his lawyer informed the judge that, with the exception of the issues we have just mentioned, they had no problems with the conclusions of the presentence report. That representation waived any other theories related to the sentence. See United States v. Scanga, 225 F.3d 780, 783 (7th Cir. 2000).

Let us now go back to where counsel began. In what seems to have become an obligatory performance in every Anders brief, counsel first inquired whether it is possible to challenge the guilty plea on the ground that the judge did not comply with Fed.R.Crim.P. 11. Knox did not ask the district judge for leave to withdraw his plea, so only plain error could justify relief, see United States v. Vonn, --- U.S. ----, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), and that is an exacting standard. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although counsel tells us that he found no flaws in the Rule 11 colloquy, he did not look closely enough. The district judge did not explicitly remind Knox of his right to plead not guilty, see Rule 11(c)(3)--though Knox, who already had pleaded not guilty and sought to alter that plea, obviously knew this--and failed to inform Knox what could happen if he violated the terms of the supervised release that would follow his imprisonment, see Rule 11(c)(1). Again it is likely that Knox knew that bad things (such as a return to prison) lay in store if he failed to abide by the terms of release, but counsel's failure to find and discuss these shortcomings in the guilty-plea procedure raises some doubts about the thoroughness with which he prepared this Anders brief.

Yet there is an antecedent question: Does Knox want to withdraw his plea, forfeit the three-level reduction, go to trial, and take the risk of a longer sentence? The sentence is likely to be longer not only because the range will jump to 324-405 months if everything else stays the same while Knox loses the reduction for acceptance of responsibility, but also because the testimony at trial may...

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