United States v. Larry Johnson ( 2018 )

NONPRECEDENTIAL DISPOSITION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 October 23, 2018
Decided October 26, 2018
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-3008
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 16-20075-001
LARRY C. JOHNSON, Colin S. Bruce,
Defendant-Appellant. Judge.
ORDER
Police officers received a tip that Larry Johnson had delivered drugs to a
confidential source. They located Johnson driving his car and activated their emergency
lights behind him. But he did not pull over. Instead, Johnson stopped at a hospital and
fled into the emergency room, where he discarded a plastic bag containing cocaine base,
marijuana, and a digital scale. The officers found Johnson hiding in the bushes outside
the hospital and arrested him. He was indicted for one count of possession with intent
to distribute twenty-eight grams or more of a mixture containing crack cocaine, 21
U.S.C. § 841(a)(1). On April 18, 2017, the government filed an information giving notice
No. 17-3008 Page 2
of its intent to increase the statutory minimum sentence based on Johnson’s felony drug
conviction in state court on September 19, 2011. See 21 U.S.C. § 851(a). Johnson did not
object to the information and two weeks later pleaded guilty. Id. § 841(a)(1). The district
judge therefore sentenced Johnson to the increased statutory mandatory minimum of
120 months’ imprisonment and eight years’ supervised release. See id. § 841(b)(1)(B)(iii).
Johnson appeals, but his appointed lawyer seeks to withdraw, stating that the
appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Johnson did not respond
to counsel’s motion. See CIR. R. 51(b). Counsel has submitted a brief that explains the
nature of the case and addresses the issues that a case of this kind might be expected to
involve. Because the analysis appears to be thorough, we limit our review to the
subjects that counsel discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Johnson could argue that his guilty plea was not
knowing and voluntary. Counsel states in a footnote that “Mr. Johnson has not
indicated that he wishes to withdraw his guilty plea, [sic] however he has not confirmed
that he does not want to withdraw it.” Generally, attorneys should not explore a Rule 11
argument in an Anders submission unless they know, “after consulting their clients, and
providing advice about the risks,” that the defendant wishes to withdraw the plea.
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Although we do not condone the
possible failure to undertake this necessary consultation, counsel still explains why it
would be frivolous to challenge the validity of the guilty plea, and our own review of
the record confirms this. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012).
Johnson did not attempt to withdraw his guilty plea in the district court, and, as counsel
notes, the transcript shows that the district court substantially complied with the
requirements of Rule 11 to ensure that the plea was knowing and voluntary. See FED. R.
CRIM. P. 11; United States v. Bowlin, 534 F.3d 654, 656–57, 660–61 (7th Cir. 2008).
Counsel next discusses the potential argument that the district court failed to
comply with 21 U.S.C. § 851(b), by not explicitly confirming the validity of Johnson’s
2011 felony conviction. See United States v. Cheek, 740 F.3d 440, 452–53 (7th Cir. 2014).
Johnson never responded to or contested the government’s notice of its intent to rely on
the prior conviction to increase Johnson’s minimum prison term. See 21 U.S.C. § 851(c).
Counsel further notes, correctly, that if the predicate conviction is more than five years
old, the defendant cannot challenge its validity. 21 U.S.C. § 851(e). The government
No. 17-3008 Page 3
served its information five and a half years after Johnson incurred the conviction, so we
agree that any challenge related to the increased statutory minimum would be
frivolous. See Cheek, 740 F.3d at 452–53.
Last, counsel explains that any potential argument that Johnson’s sentence is
unreasonable would be frivolous. At the sentencing hearing, Johnson conceded that the
guidelines range was properly calculated, that the mandatory minimum applied, and
that the judge had no discretion to sentence him below that minimum. See, e.g., United
States v. Brucker, 646 F.3d 1012, 1016 (7th Cir. 2011). We therefore conclude that
challenging the sentence would be frivolous.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.