United States v. Eriberto Brito , 507 F. App'x 606 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 April 19, 2013
Decided May 17, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-2416
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 10 CR 50071-2
ERIBERTO BRITO,
Defendant–Appellant. Philip G. Reinhard,
Judge.
ORDER
Eriberto Brito sold hundreds of grams of crack and powder cocaine to an
undercover police officer and, over an 11-month period, was overheard on a wiretap
arranging several drug deals. Often during those monitored conversations, he called his
residence his “office,” and agents from the Drug Enforcement Administration saw buyers
meet Brito at his residence before sales to the undercover officer took place. After Brito’s
brother—his partner—was arrested by state police, DEA agents went to Brito’s home
without a warrant, forced their way inside, and arrested him but did not search the
residence. Other agents already were in the process of obtaining a search warrant, which
they executed four hours later. Inside they found several firearms, two with obliterated
serial numbers, and one pound of marijuana. The agents found another gun in a storage
shed outside. Brito was charged with conspiracy to possess with intent to distribute crack
No. 12-2416 Page 2
and powder cocaine, 21 U.S.C. §§ 846, 841(a)(1), distributing cocaine, id. § 841(a)(1), and
possessing firearms with obliterated serial numbers, 18 U.S.C. § 922(k).
Brito moved to suppress the fruits of the search. He argued that the DEA agents had
entered his home without probable cause or exigent circumstances and discovered the
evidence inside only because of that illegal entry. The district court concluded that the
agents had probable cause to search Brito’s house when they first entered without a
warrant, but the court agreed with Brito that the initial entry had violated the Fourth
Amendment because the agents were not aware of any exigency justifying the decision not
to wait for a warrant. But suppression of evidence was not an available remedy for the
illegal entry, the court reasoned, because the later search warrant was not premised on any
information gleaned after that first entry.
After the district court denied Brito’s motion, he entered a conditional guilty plea to
the conspiracy charge, reserving the right to challenge the adverse ruling on appeal. The
conspiracy had involved more than 300 grams of crack alone, so Brito faced a statutory
minimum of 10 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). The court calculated a
total offense level of 31 and criminal-history category of II, yielding a guidelines
imprisonment range of 121 to 151 months, and imposed a prison sentence of 121 months.
Brito has filed a notice of appeal, but his appointed lawyer contends that the appeal is
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Brito has
not responded to counsel’s motion. See CIR. R. 51(b). We confine our review to the 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 evaluates whether Brito could challenge the voluntariness of his
conditional guilty plea but does not say whether he discussed this prospect with Brito.
See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Yet counsel’s discussion and our
review of the record convince us that this potential claim would be frivolous. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Brito never asked in the district court to
withdraw his plea, so our review would be limited to plain error. See United States v. Vonn,
535 U.S. 55, 59 (2002); Schuh, 289 F.3d at 974. And counsel has not identified any mistake or
omission in the plea colloquy, nor have we. The court explained the charge and statutory
penalties; discussed the consequences of pleading guilty, including the rights Brito would
relinquish by his plea; ensured that his plea was voluntary; and determined that a factual
basis for the plea exists. See FED. R. CRIM. P. 11(b).
Counsel next questions whether Brito could dispute the denial of his motion to
suppress but rightly concludes that an appellate claim would be frivolous. When the DEA
agents first entered Brito’s home without a warrant or exigent circumstances, they violated
No. 12-2416 Page 3
the Fourth Amendment. See Kentucky v. King, 131 S. Ct. 1849, 1856 (2011); United States v.
Etchin, 614 F.3d 726, 733–34 (7th Cir. 2010). But the district court found that the agents did
not search the house until after they had obtained a search warrant, and that warrant was
not tainted by the unlawful entry: The agents’ 11-month investigation, and not anything
seen in Brito’s home before they secured the warrant, gave probable cause to search.
See Segura v. United States, 468 U.S. 796, 798–99 (1984); Etchin, 614 F.3d at 734–37; United
States v. Alexander, 573 F.3d 465, 476 (7th Cir. 2009). Any challenge to the court’s factual
findings would be frivolous.
Counsel last considers a claim that Brito’s prison sentence is unreasonable. The term
imposed is at the low end of the guidelines range and exceeds the statutory minimum by
only a month. And we presume that the within-guidelines sentence is reasonable. See Rita
v. United States, 551 U.S. 338, 347 (2007); United States v. Smith, 562 F.3d 866, 873 (7th Cir.
2009). Counsel has not identified any reason to set aside this presumption, and neither can
we. We thus agree with counsel that this claim would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.