United States v. Stark, Willie , 168 F. App'x 738 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006
Decided February 22, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1644
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 03-20089-001
WILLIE STARK, Michael P. McCuskey,
Defendant-Appellant. Judge.
ORDER
Willie Stark sold crack cocaine to an informant and later pleaded guilty to
distributing over five grams of the drug, 21 U.S.C. § 841(a)(1). Stark had two prior
state drug convictions, so his statutory sentencing range was ten years to life, id.§ 841(b)(1)(B). The district judge sentenced him under the guidelines as a career
offender, U.S.S.G. 4B1.1(b), to 262 months’ imprisonment and eight years’
supervised release. Stark’s appointed counsel has filed a motion to withdraw under
Anders v. California, 386 U.S. 738 (1967), for he cannot find a nonfrivolous issue for
apeal. Stark responded, see Cir. R. 51(b). Counsel’s brief is facially adequate, so we
limit our review to the issues that he and Stark raise. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002). We agree with counsel that any appeal would
be frivolous.
Counsel first questions whether there are any potential issues regarding
Stark’s guilty plea. See Fed. R. Civ. P. 11. Stark does state in his Rule 51(b)
No. 05-1644 Page 2
submission that he would like to withdraw his plea, so counsel’s exploration of this
issue is appropriate. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir.
2002). But since he did not move in the district court to withdraw the plea, our
review would be for plain error. United States v. Vonn, 535 U.S. 55, 74 (2002).
Counsel notes that the district court failed to advise Stark that he had a right to
counsel, or that he faced a $100 special assessment. Any appellate argument on
these points would be frivolous: Stark already had counsel, so that proviso was
unnecessary, United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988), and nothing
suggests that Stark would not have pleaded guilty had the court advised him of the
special assessment.
Stark contends in his Rule 51(b) submission that he could raise several
arguments under 21 U.S.C. § 851, which provides certain safeguards to defendants
when the government uses a prior conviction to enhance a statutory minimum
sentence. He first posits that he was given insufficient notice that his statutory
range would be increased to 10 years to life from 5–40 years, 21 U.S.C.
§ 841(b)(1)(B). But the government complied with § 851(a)(1), which requires it to
file with the court (and serve on the defendant) an information describing the prior
convictions “before entry of a plea of guilty.” Here the government filed and served
the information on the day of the plea hearing, before the hearing began, and this is
sufficient. See United States v. Curiale, 390 F.3d 1075 (8th Cir. 2004) (filing
information day of plea hearing satisfies § 851); United States v. Ceballos, 302 F.3d
679, 693 (7th Cir. 2002) (mailing information two days before trial commenced is
sufficient); United States v. Robinson, 110 F.3d 1320, 1327–28 (8th Cir. 1997) (filing
information minutes before beginning of jury selection satisfies § 851). Stark next
contends that he would challenge the district court’s failure to afford him an
opportunity to deny that he had been previously convicted, see 21 U.S.C. § 851(b).
But any such error would be harmless because Stark was well aware of the likely
enhancement from the pre-sentence investigation report (PSR) and he never
contended at sentencing—or even now for that matter—that he had not been
convicted. See United States v. Williams, 298 F.3d 688, 692–93 (7th Cir. 2002).
Stark would also argue that he was given insufficient notice that he would be
sentenced under the guidelines as a career offender, but the guidelines do not
require this sort of notice. Section 851 does not apply to the guidelines, so he
received all the notice of his career offender status he was due in the form of the
PSR. Daimerville v. United States, 197 F.3d 287, 289–90 (7th Cir. 1999).
Two issues remain. Counsel questions whether Stark could attack his
sentence as unreasonable, but he was sentenced within the guideline range after
United States v. Booker, 543 U.S. 220 (2005), and we see nothing that might rebut
the presumption of reasonableness that such a sentence receives. See United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And, as we have frequently noted in
Anders cases, collateral review is the more appropriate vehicle for Starks to argue
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that his counsel rendered ineffective assistance. Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–59 (7th Cir. 2005).
MOTION GRANTED; APPEAL DISMISSED.