United States v. Willey, Dan A. , 141 F. App'x 482 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 21, 2005
Decided July 21, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-4342
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Eastern
District of Wisconsin
v.
No. 04-CR-22
DAN A. WILLEY,
Defendant-Appellant. Rudolph T. Randa,
Chief Judge.
ORDER
Pursuant to a plea agreement, Dan Willey pleaded guilty to producing and
mailing sexually explicit photographs of a minor, in violation of 18 U.S.C. § 2251(a)
(1994 & Supp. III 1997). Because of an earlier state conviction for using a child in
producing pornography, Willey was subject to a mandatory minimum sentence of
fifteen years’ imprisonment, 18 U.S.C. § 2251(d) (1994 & Supp. III 1997) (current
version at 18 U.S.C. § 2251(e) (Supp. IV 2004)), and that is the sentence he
received. Willey filed a notice of appeal, but his appointed lawyer now moves to
withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders
v. California, 386 U.S. 738 (1967). We invited Willey to respond to the Anders brief,
see Cir. R. 51(b), but he has not done so. Because counsel’s brief is facially
No. 04-4342 Page 2
adequate, we review only the potential issues it identifies. See United States v.
Johnson, 248 F.3d 655, 667–68 (7th Cir. 2001).
Counsel first considers whether Willey could argue that the district court
failed to properly inform him of the significance of his guilty plea, as required by
Fed. R. Crim. P. 11(b), and that he should therefore be allowed to withdraw his plea
as involuntary and unknowing. The issue is properly considered, as counsel reports
that Willey has expressed an interest in withdrawing his plea. See United States v.
Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Willey did not move to withdraw his
plea in the district court, however, so we would review only for plain error. See
United States v. Vonn, 535 U.S. 55 (2002); United States v. Martinez, 289 F.3d
1023, 1029 (7th Cir. 2002).
Counsel identifies a number of ways in which the court’s instructions at the
change-of-plea colloquy did not comply with Rule 11(b). Specifically, the court did
not inform Willey that he could be prosecuted for making a false statement under
oath, see Fed. R. Crim. P. 11(b)(1)(A); that he had the right to plead not guilty, see
id. 11(b)(1)(B); that he had the right to an attorney, see id. 11(b)(1)(D); that he had
the right to confront witnesses and compel their attendance, see id. 11(b)(1)(E); that
he could be subject to penalties for forfeiture and restitution, see id. 11(b)(1)(J), (K);
and that his sentence would be determined under the sentencing guidelines, see
id. 11(b)(1)(M).
Counsel concludes, however, that these omissions were harmless—that is,
they did not “interfer[e] with the defendant’s ability to make an informed and
intelligent decision to plead guilty.” McCleese v. United States, 75 F.3d 1174, 1181
(7th Cir. 1996). The court’s failure to inform Willey of his right to an attorney was
harmless, for example, because Willey was already represented by an attorney.
Similarly, the fact that Willey had already pleaded not guilty, and was attempting
to change that plea, shows that the court’s failure to remind him of his right to
plead not guilty was harmless. See Knox, 287 F.3d at 670. Counsel further points
out that Willey was informed in his plea agreement of his right to confront and
compel the attendance of witnesses. See United States v. Driver, 242 F.3d 767, 769
(7th Cir. 2001) (Rule 11 omission harmless when information already conveyed to
defendant by his counsel or in his plea agreement). And although the court did not
mention the possibility of forfeiture, restitution, or perjury, there was no forfeiture
or restitution ordered, and Willey is not facing any current or prospective
prosecution for perjury, so, counsel argues, those errors are also harmless. See
United States v. Fox, 941 F.2d 480, 484 (7th Cir. 1991) (restitution); United States
v. Graves, 98 F.3d 258, 259 (7th Cir. 1996) (perjury). Finally, counsel maintains
that the court’s failure to inform Willey of the role of the sentencing guidelines was
harmless, not only because those guidelines were made advisory by United States v.
No. 04-4342 Page 3
Booker, 125 S. Ct. 738 (2005), but because the guidelines did not affect Willey’s
sentence—he received the statutory minimum sentence of fifteen years, well above
the guideline range of 108 to 135 months that otherwise would have applied.
Because all of these omissions from the Rule 11 colloquy were harmless, counsel
believes that the district court substantially complied with the rule, see United
States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997), and that it would therefore be
frivolous for Willey to argue that his guilty plea was not knowing and voluntary.
We agree.
Counsel also considers whether Willey could challenge his sentence. As we
just noted, that sentence was the statutory minimum for Willey’s offense. Because
Willey was not eligible for either a “substantial assistance” or a “safety valve”
reduction of his sentence, see 18 U.S.C. § 3553(e), (f); United States v. Crickon,
240 F.3d 652, 655 (7th Cir. 2001), the statutory minimum was the lowest sentence
he could have received. We therefore agree that any challenge to Willey’s sentence
would be frivolous.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.