United States v. Ahamad Atkins , 640 F. App'x 549 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 March 18, 2016
Decided March 18, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-2180
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 14-40061-001
AHAMAD R. ATKINS, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
Ahamad Atkins pleaded guilty to conspiracy to distribute a controlled substance,
21 U.S.C. §§ 846, 841(a)(1), and the district court sentenced him to 216 months’
imprisonment. Atkins filed a notice of appeal, but his appointed lawyer has moved to
withdraw on the ground that the appeal is frivolous. See Anders v. California, 386 U.S. 738
(1967). Atkins agrees that counsel should be discharged but proposes that we appoint
substitute counsel. See CIR. R. 51(b). Counsel has submitted a brief that explains the
nature of the case and addresses potential issues that an appeal of this kind might be
expected to involve. We limit our discussion to those issues plus the additional points
that Atkins, disagreeing with counsel, believes have merit. See United States v. Bey, 748
F.3d 774, 776 (7th Cir. 2014). For the reasons that follow, we grant counsel’s motion and
dismiss the appeal.
No. 15-2180 Page 2
Atkins was indicted after making a number of small sales to informants totaling
9.3 grams of crack cocaine and 1.1 grams of heroin. The probation officer estimated,
though, that Atkins was responsible for distributing 1.2 kilograms of heroin, 753 grams
of crack cocaine, and 1 kilogram of powder cocaine, which together equate to 4,097
kilograms of marijuana. Atkins objected that the actual amounts were about 10% of these
figures, and he also contested statements from several eyewitnesses who said that they
had seen him with guns while selling drugs. The government called five witnesses at
sentencing to substantiate the probation officer’s numbers: three former customers (who
were cooperating with the prosecution) and two investigators involved in the
investigation.
Adam Calvert testified that he had purchased heroin from Atkins “most” days
over 3 years, sometimes twice per day, in amounts of either .3 grams or 1 gram. He
preferred the larger quantity because it was more economical, but he couldn’t say how
often he could afford to do so. Calvert estimated that his monthly heroin purchases
averaged about an ounce, but he also testified that about once each month he bought half
a gram of crack or powder cocaine from Atkins.
Matthew Davis testified that he had paid Atkins $50 to $500 for crack or powder
cocaine at least 200 times over 4 to 5 years. Davis said that half a gram of either crack or
powder cost $50. Most often he spent $100 or $200, and 75% of the time he bought crack,
rather than powder. Davis also said that he’d purchased a quarter ounce of crack at least
twice and .3 grams of heroin at least 20 times.
Paul Irby, who made several of the controlled buys, testified that he had
purchased crack or powder cocaine from Atkins at least 300 times from 2007 to 2014.
When asked how many of those purchases occurred during the three years before he
became an informant, Irby again estimated 300. After testifying that he typically bought
2 grams of crack for $200, Irby had this exchange with the prosecutor:
Q: What’s the smallest amount of crack you ever bought . . . ?
A: $50 worth, a half a gram.
Q: How many times do you think you bought the $50 amount?
A: At least 300 plus times.
No. 15-2180 Page 3
Q: Okay. So, if you bought the 50, if you bought the half-gram amounts
300 times, how many times did you get—I thought you said you
normally purchased two-gram amounts.
A: Yes, when I had the money I would try to get as much as I could.
Q: Okay. How many times do you think you bought the two-gram
amounts?
A: At least 300.
Q: Okay. And then a dozen—approximately a dozen times of the
quarter-ounce?
A: Yes.
Q: And at least eight to ten times of the half-ounce?
A: Yes.
Irby also testified that, after receiving a large settlement from a personal-injury lawsuit,
he’d once purchased a kilogram of powder cocaine from Atkins for $28,000.
Deputy Sheriff Chris Kelly testified about purchases made by three other
informants. One informant, he said, reported buying heroin roughly 25 times and .5
grams of crack “on a few occasions.” The second informant, Kelly continued, bought .5
to 1 gram of crack weekly for a year, and the third reported that she had purchased from
.6 to 1 gram of heroin daily for more than 2 years. Finally, DEA special agent Bernie Gard
testified about the controlled buys from Atkins.
The district court concluded that Calvert, Davis, and Irby all were credible and
then found Atkins responsible for 1,431 grams of heroin, 701.2 grams of crack, and 1,009
grams of powder, together equivalent to 4,135.8 kilograms of marijuana. That quantity
yielded a base offense level of 32. The court added 2 levels for possession of a firearm,
see U.S.S.G. § 2D1.1(b)(1), and agreed with the government that Atkins should not
receive a decrease for acceptance of responsibility, see id. § 3E1.1, because he had
frivolously contested relevant conduct. The total offense level of 34, combined with
Atkins’s criminal history category of III, resulted in a guidelines imprisonment range of
188 to 235 months.
No. 15-2180 Page 4
Appellate counsel begins by contending that Atkins’s guilty plea was knowing
and voluntary, and that any challenge to the plea would be frivolous. Counsel does not
say if she consulted Atkins about whether he wants his guilty plea vacated. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–
71 (7th Cir. 2002). Regardless, our review would be limited to plain error because Atkins
did not move to withdraw his plea in the district court (even though the court
specifically offered him an opportunity to do so). See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). We agree with counsel
that any argument challenging the adequacy of the plea colloquy or the voluntariness of
Atkins’s plea would be frivolous because the district court substantially complied with
Federal Rule of Criminal Procedure 11 before accepting the plea. And contrary to
Atkins’s contention, his guilty plea was not undermined by his lack of access to a law
library, since a defendant who is represented by counsel is not entitled to legal materials
for independent research. United States v. Sykes, 614 F.3d 303, 311 (7th Cir. 2010).
Counsel also considers whether Atkins could challenge the district court’s
application of a 2-level upward adjustment for possession of a firearm, see U.S.S.G.
§ 2D1.1(b)(1), or the court’s denial of credit for acceptance of responsibility,
see id. § 3E1.1. As counsel correctly points out, numerous witnesses testified about the
specific types of guns that Atkins possessed in their presence, and the prosecution
introduced a taped conversation in which Atkins attempted to purchase a larger caliber
weapon. The district court was entitled to both credit this testimony and find that
Atkins’s continued insistence that he had never possessed a firearm meant that he had
falsely denied relevant conduct and thus wasn’t entitled to a reduction for acceptance of
responsibility. See United States v. Willis, 300 F.3d 803, 806–08 (7th Cir. 2002); United States
v. Fiore, 178 F.3d 917, 925–26 (7th Cir. 1999).
In his Rule 51(b) response, Atkins continues to challenge the veracity of the
witnesses who testified at sentencing as well as the drug quantity for which he was
found responsible. Indeed, there were inconsistencies in the testimony. For example,
Irby said that he’d purchased drugs from Atkins a total of 300 times, but when asked
about quantities, Irby claimed to have purchased half a gram 300 times, 2 grams 300
times, a quarter-ounce a dozen times, and a half-ounce 8 to 10 times. Irby’s 300
purchases thus ballooned into 620 total buys. And the quantities that Agent Gard gave
for the controlled buys conflicted with those listed in the presentence report (albeit by
only a few grams). As counsel correctly points out, however, the district court was
entitled to believe the witnesses and rely on their estimates to determine Atkins’s
relevant conduct. See United States v. Etchin, 614 F.3d 726, 738 (7th Cir. 2010) (explaining
No. 15-2180 Page 5
that appellate review is “especially deferential” where a sentencing challenge is based on
a credibility determination). And even if the court had credited only the most
conservative estimates given by each witness, the testimony still would have been
sufficient to place Atkins above 3,000 kilograms of marijuana equivalent—meaning that
his offense level would remain unchanged. An appeal challenging the district court’s
drug-quantity finding would therefore be frivolous.
Finally, Atkins tells us that he wishes to challenge counsel’s performance as
deficient for not giving him access to discovery before he pleaded guilty, and not
adequately (in his opinion) objecting to the testimony at sentencing concerning the drug
quantity. We have emphasized repeatedly that claims of ineffective assistance of counsel
should be reserved for collateral review, so that a record may be developed in the district
court. See Vinyard v. United States, 804 F.3d 1218, 1227–28 (7th Cir. 2015); United States v.
Flores, 739 F.3d 337, 341–42 (7th Cir. 2014).
Accordingly, counsel’s motion to withdraw is GRANTED, Atkins’s motion for
substitute counsel is DENIED, and the appeal is DISMISSED.