NONPRECEDENTIAL DISPOSITION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 February 22, 2012
Decided February 22, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1743
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 09 CR 50034‐2
TROY NEELY,
Defendant‐Appellant. Frederick J. Kapala,
Judge.
O R D E R
Troy Neely and codefendant Osic Puckett were arrested after police officers saw
them load marijuana from a shipping container into a U‐Haul van and drive away. After
his motion to suppress the marijuana was denied, Neely entered a conditional guilty plea to
conspiring to possess with intent to distribute marijuana.
21 U.S.C. §§ 846, 841(a). He was
sentenced to 5 years’ imprisonment, the mandatory minimum for crimes involving at least
100 kilgrams,
id. § 841(b)(1)(B)(vii), and fined $50,000. Neely filed a notice of appeal, but his
appointed lawyer has moved to withdraw because he cannot identify a nonfrivolous issue
to pursue. See Anders v. California,
386 U.S. 738 (1967). Neely has not accepted our invitation
to respond 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).
No. 11‐1743 Page 2
Neely’s guilty plea is conditioned on the right to challenge on appeal the denial of
his motion to suppress. See FED. R. CRIM. P. 11(a)(2). Neely has told counsel that he wants to
contest that ruling but does not want his guilty plea vacated if the decision is upheld. Thus,
counsel properly omits discussion about the adequacy of the plea colloquy or the
voluntariness of Neely’s guilty plea. See United States v. Knox,
287 F.3d 667, 670–72 (7th Cir.
2002).
Counsel begins with analysis of the motion to suppress. The district court heard
evidence that authorities executing a search warrant found 505 pounds of marijuana in a
shipping container after employees of the freight company hauling that container to
Rockford, Illinois, detected the smell of marijuana. A police officer posing as a company
employee delivered the container and cargo to the intended destination, a vacant lot. The
officer was met there by Eugene Leach, who signed for the delivery using an alias matching
the name on the manifest. After the undercover officer had departed, Neely and Puckett
arrived in a white U‐Haul van and, with surveillance officers watching, transferred the
marijuana from the container into their van. The two men departed without Leach and
were followed by police to a residence, where they parked inside an attached garage and
shut the door. Although the police did not have warrants to search the house or arrest
Neely and Puckett, several officers went to the front door and identified themselves.
Testimony at the suppression hearing differed as to what happened next. According
to two police officers, Puckett opened the front door and voluntarily stepped onto the
porch, where he was arrested. Officers then entered and conducted a protective sweep
lasting less than a minute. During this sweep, the officers testified, no new evidence was
discovered but Neely was arrested and taken outside. Neely did not dispute the brevity of
the protective sweep, but he insisted that the police entered the house uninvited with guns
drawn and arrested both men inside the home before conducting the sweep.
The marijuana was not recovered until several hours later. Following his arrest
Neely told police that the residence was owned by Chris Williams, a friend and business
associate. After police contacted him at work, Williams returned home and signed a written
consent to search. At the suppression hearing Williams agreed that he had given consent
but said he had felt pressured into signing because the officers told him they would seal the
home and keep him out until they obtained a search warrant. The police witnesses denied
making this statement.
Appellate counsel questions whether Neely could contest the district court’s
conclusions that he lacked standing to challenge the search of the shipping container, that
the protective sweep was lawful, and that Williams had validly consented to the search of
his own home. We agree with counsel that it would be frivolous to dispute these
determinations. We would not overturn the district court’s conclusion that Neely lacked a
protected Fourth Amendment interest in the shipping container because he presented no
No. 11‐1743 Page 3
evidence that he had an objective or subjective expectation of privacy in the container.
See United States v. Carlisle,
614 F.3d 750, 756–58 (7th Cir. 2010); United States v. Figueroa‐
Espana,
511 F.3d 696, 703–04 (7th Cir. 2007). The container was destined for “Johnny
Stamps,” and it was Eugene Leach, not Neely, who answered to that alias. Nor would we
disturb the finding that Williams voluntarily consented to the search of his home. The
district court credited the police officers and disbelieved Williams when he said he was told
that, if he did not consent, he could not enter his home while a search warrant was being
obtained. Not only are credibility findings almost never clearly erroneous, United States v.
Stewart,
536 F.3d 714, 720 (7th Cir. 2008); United States v. Biggs,
491 F.3d 616, 621 (7th Cir.
2007), but the police would not have vitiated Williams’ consent by disclosing their plan to
exclude him from the house while obtaining a warrant, as they were authorized to do, see
Segura v. United States,
468 U.S. 796, 810 (1984); United States v. Johnson,
495 F.3d 536, 542
(7th Cir. 2007). And, finally, the legality of the protective sweep (or Neely’s arrest) was
irrelevant to the motion to suppress; the police had watched Neely and Puckett transport a
truckload of marijuana into Williams’ garage, and nothing seen by the police during their
sweep played any role in the consent search that followed. See United States v. Etchin,
614
F.3d 726, 731 (7th Cir. 2010); United States v. Alexander,
573 F.3d 465, 476 (7th Cir. 2009).
We also agree with counsel that any challenge to Neely’s sentence would be
frivolous. Neely raised no objection to the guidelines calculations, and appellate counsel
has not detected any possible errors now. Although Neely’s prison sentence of 60 months is
above the range of 46 to 57 months that would have applied if not for the mandatory
minimum, the term he received was the statutory minimum and thus also the guidelines
sentence. See U.S.S.G. § 5G1.1(b); United States v. Monroe,
580 F.3d 552, 554 & n.5 (7th Cir.
2009). The court also sufficiently explained its decision to impose a within‐guidelines fine of
$50,000 by pointing to facts in the presentence report demonstrating that Neely had the
ability to pay but was attempting to hide assets to mislead the court. See
18 U.S.C. § 3572(a);
U.S.S.G. § 5E1.2(d); United States v. Artley,
489 F.3d 813, 825–26 (7th Cir. 2007).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
