United States v. Duane Rogers , 700 F. App'x 538 ( 2017 )

NONPRECEDENTIAL DISPOSITION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, 2017 *
Decided November 9, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-3620
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 521-11
DUANE G. ROGERS,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
The night before Duane Rogers was to stand trial in Colorado for sexually
assaulting his stepdaughter, he fled to Mexico. There he joined a fraudulent scheme that
marketed timeshare properties. Rogers, a disbarred attorney, was involved in the
operation for roughly two months and helped to defraud 87 victims of over $300,000.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).
No. 16-3620 Page 2
Rogers was arrested and eventually convicted and sentenced in Colorado for his state
sexual-assault crime. In the Northern District of Illinois, he then pleaded guilty to wire
fraud, 18 U.S.C. § 1343, for his participation in the Mexico scheme. Based on a guideline
range of 51 to 63 months, the district judge sentenced Rogers to 47 months in prison and
three years of supervised release.
Rogers filed a notice of appeal, but his attorney has moved to withdraw his
appearance because, he contends, this appeal is frivolous. See Anders v. California, 386
U.S. 738 (1967). We grant counsel’s motion and dismiss this appeal.
Counsel’s supporting brief is facially adequate, so we “confine analysis to the
issues discussed in the brief and in the defendant's response (if any) to it.” United States
v. Bey, 748 F.3d 774, 776 (7th Cir. 2014) (“By ‘facially adequate’ we mean that the brief
appears to be a competent effort to determine whether the defendant has any grounds
for appealing”). We invited Rogers to comment on his counsel’s motion to withdraw, but
he has not responded. See CIR. R. 51(b).
Counsel reports that Rogers does not wish to withdraw his guilty plea. Therefore,
counsel appropriately does not consider challenging the voluntariness of the plea or the
adequacy of the plea colloquy. See FED. R. CRIM. P. 11; United States v. Knox, 287 F.3d 667,
670–71 (7th Cir. 2002).
Next, counsel weighs whether to challenge Rogers’s prison sentence but properly
rejects this challenge as frivolous. There were increases to Rogers’s base offense level for
actual loss and substantial financial hardship, and any argument that these were
erroneous is forfeited because Rogers did not object to them in the district court. Based
on the record, there is no reason to believe that Rogers could show on appeal that the
district court committed plain error. Furthermore, arguing that Rogers was entitled to a
minor-participant reduction under U.S.S.G. § 3B1.2 would be futile because he was not
“substantially less culpable than the average participant.” United States v. Thi, 692 F.3d
571, 574 (7th Cir. 2012) (quoting United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011)
(internal quotations omitted)). As the district court found, dozens of telemarketers were
less involved than Rogers, who represented himself as a trusted escrow agent and made
the timeshare business appear more legitimate by polishing up fake paperwork that was
sent to cheat victims out of money.
Arguing that the government should have moved for a departure for substantial
assistance, see U.S.S.G. § 5K1.1, would also be frivolous, because although he attempted
to cooperate, the government already had most of the information Rogers supplied. See
United States v. Billings, 546 F.3d 472, 476 (7th Cir. 2008). It would not be worthwhile to
argue that Rogers was improperly awarded one criminal-history point for a 2003 DUI in
No. 16-3620 Page 3
Colorado, for which he received 18 months of probation. The guideline makes no
exception for states in which the blood-alcohol level required for a violation is unusually
low. See U.S.S.G. § 4A1.2, App. Note 5 (“Convictions for driving while intoxicated or
under the influence . . . are always counted, without regard to how the offense is
classified.”).
Counsel next suggests challenging the judge’s decision to impose the federal
sentence consecutive to Rogers’s Colorado prison sentence. But district judges have
discretion to run a federal term of imprisonment consecutively to or concurrently with
an unrelated state term. 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c); United States v. Statham,
581 F.3d 548, 555 (7th Cir. 2009). Here, the judge reasoned that because the federal fraud
was completely unrelated to the state sexual assault, it should be punished with a
separate prison sentence. It would be frivolous to argue that this sound justification for
consecutive sentences was an abuse of discretion.
Last, counsel considers whether imposing supervised release was unreasonable.
Rogers argued that he would already be subject to onerous restrictions under Colorado’s
strict regime for paroled sex offenders, so federal supervised release would add
unnecessary conditions. But the judge gave valid reasons for the sentence as a whole,
including the use of federal supervised release as a tool to increase the ability to collect
restitution for the benefit of the fraud victims. The judge did not need to provide a
separate explanation for the supervised release term. United States v. Bloch, 825 F.3d 862,
870 (7th Cir. 2016). Regardless, the judge did address Rogers’s argument, and imposing
supervised release was well within her discretion.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.