United States v. Wilson, Darryl L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARYL L. WILSON, STEVIE THOMAS,
DONNELL L. COHN, SAMMY ARMSTEAD,
and TYREE COLLINS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 895—Rebecca R. Pallmeyer, Judge.
____________
ARGUED FEBRUARY 6, 2007—DECIDED MARCH 16, 2007
____________
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This multi-defendant criminal
appeal concerns a drug conspiracy at a public housing
complex in Chicago. The five defendants were members
of the Gangster Disciples (“GD”) street gang, which
organized all drug sales at a building at 340 South West-
ern Avenue. Each was indicted for, among other things,
conspiracy to possess with intent to deliver crack cocaine
within 1000 feet of a public housing complex. Donnell Cohn
and Tyree Collins pled guilty while Sammy Armstead,
Darryl Wilson, and Stevie Thomas went to trial and were
2 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
found guilty. Their sentences range from 180 months to
life imprisonment.
The principal argument on appeal is that the govern-
ment failed to disclose material evidence that could have
allowed the defendants who went to trial to impeach one
of the prosecution’s key witnesses. In light of the over-
whelming evidence against the defendants, we find that
the suppressed evidence was not material. Several defen-
dants also raise various sentencing issues. In accordance
with the procedure set forth in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), we order a limited remand
as to the sentences of Armstead and Wilson. We dismiss
Cohn’s appeal because his plea agreement contained a
waiver of his appeal rights. Finally, Collins’s appointed
counsel moves to withdraw under Anders v. California,
386 U.S. 738 (1967). Because we agree with counsel that
any potential appellate issue would be frivolous, we
grant the motion to withdraw and dismiss Collins’s appeal.
I. BACKGROUND
In 2000 the Department of Housing and Urban Develop-
ment (“HUD”) began investigating drug sales at the 340
building, which was a part of the Rockwell Gardens
public housing complex on the west side of Chicago.
Through the use of undercover agents, cooperating co-
defendants, and audio- and video-recordings of gang
meetings and conversations, HUD brought to light a
substantial business in crack cocaine from 1999 to 2002
that was spearheaded and organized by the GDs. Over a
nine-month period, two undercover agents purchased
almost 200 grams of crack in approximately 50 separate
transactions, including from defendants Wilson and
Thomas. Investigators also secured the cooperation of a
number of members of the conspiracy, including Richard
Epps (a former high-ranking GD member who was de-
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 3
moted for conducting a side-business in drugs), and
Derquann Butts and Trevon Banks (two disgruntled GD
members who were beaten for insubordination). In addi-
tion, defendant Collins cooperated with the government
and was rewarded with the promise of a sentence of one-
half the bottom end of his range under the Sentencing
Guidelines. Collins eventually pled guilty and was sen-
tenced to 180 months’ imprisonment; on appeal he chal-
lenges his sentence.
The evidence against the other defendants was sub-
stantial. According to audio recordings and testimony
from co-defendants, defendant Armstead was the gov-
ernor of the GDs for the west side of Chicago beginning
in September 2001—he controlled all west side operations
for the gang. The government introduced a recording,
obtained through a wire transmitter worn by one of the
cooperating co-defendants, of an October 2001 gang
meeting that Armstead led. The meeting was an attempt
to kick-start the GD drug business at the 340 building,
which was disorganized and inefficient. The standing
policy was for gang members to sell the gang’s drugs on
the first four days of the month—when residents of the
building received paychecks or public assistance—leaving
the remainder of the month for sales from gang members’
private stashes. Some gang members were tired of the
policy and asked Armstead to propose to his superiors
cutting back gang sales to every other month. He promised
to relay the concern, but otherwise emphasized the need
for cooperation and reinforced the first-of-the-month
policy, which he said would benefit all gang members. The
government also made audio and video recordings of
meetings in August and September 2002, in which
Armstead described the GDs’ sales organization at the
340 building, brainstormed new ways to increase profits
through drug sales, and encouraged defendant Collins
(who by that time was cooperating with the government)
4 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
to take a leadership role in the gang’s operations at the
340 building. Finally, the government introduced record-
ings of several telephone calls in which Armstead demon-
strated his control over the conspiracy. The recordings
were corroborated by the testimony of cooperating co-
defendants Epps and Collins. In addition, cooperating co-
defendants Banks and Butts confirmed that Armstead
was the governor of the west side GD organization.
Armstead was found guilty of conspiracy and using a
telephone to commit a felony. He was sentenced to life
imprisonment. On appeal he challenges both his convic-
tion and his sentence.
The government’s case against defendant Wilson was
based largely on the testimony of the two undercover HUD
agents. Wilson was a regent of the GDs for the 340 build-
ing (regents control all gang activity at a particular
location). On at least four occasions, he sold crack to an
undercover agent, and usually did so in cooperation with
other gang members, whom he either directed to obtain
crack for him to sell or instructed to sell crack to the agent
on his behalf. The agent had to be searched by other gang
members before he could enter the 340 building. Cooperat-
ing co-defendants Banks and Butts also testified that as
regent, Wilson collected proceeds from the sale of gang
drugs and helped enforce gang policies. Wilson pled guilty
to four counts of individual crack sales but went to trial on
the conspiracy charge. He was found guilty and sentenced
to life imprisonment. He appeals his conviction and
sentence.
Defendant Thomas did not have a leadership role in the
organization; he merely sold crack on behalf of the gang.
On one occasion he sold crack directly to a HUD agent,
instructing another gang member to obtain an additional
amount of drugs to complete the order. On another occa-
sion, Thomas attempted to intervene while other GDs at
the 340 building sold crack to the agent. When told to
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 5
provide security on the deal by standing on the lookout
for police officers, Thomas complained because he would
not earn any money in that capacity. He went to trial
charged with conspiracy and several individual drug
sales; he was convicted and sentenced to 240 months’
imprisonment. He appeals only his conviction.
Lastly, defendant Cohn pled guilty to conspiracy to sell
drugs near a public housing facility and was sentenced
to 300 months’ imprisonment. He appeals only his sen-
tence.
II. ANALYSIS
A. Brady claim raised by Armstead, Wilson, and
Thomas
The three defendants who went to trial challenge the
district court’s denial of their motion for a new trial on
the basis of suppressed evidence. During discovery, the
government produced hundreds of pages of notes and
correspondence from Richard Epps, the former GD leader
who cooperated with prosecutors. But two weeks after
trial it emerged that the government inadvertently left
out two letters that Epps had sent from prison to a fellow
prisoner and GD member.1 The three pages of handwrit-
ten materials contain rationalizations for Epps’s decision
to cooperate, advice to his correspondent, and obscene
drawings. One of the letters also states:
Now if I see it [illegible] im going to cop out and
save myself. But im first going to try and get them
on “tee” [illegible] [illegible] mistake. But if not im
going to get Sundown BroLock and Lil-C[.] I don’t
1
The defendants do not contend that the government intention-
ally withheld the letters.
6 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
want to fuck no one I grew up with and that on my
Mom, Wife and my Child. . . . I tried to free a lot of
guys but they had already made Statement. if they
would had remain quiet they would be free. I got
Aaron off this case and prove to them we never
had on dealing.
The defendants argue that in this passage, “Epps
basically claims that he had been and would continue to
shape the prosecution to protect his friends and family
and punish his enemies through lying and perjury.” They
contend that they could have used the letters to im-
peach Epps by showing that he was willing to use his
role as cooperating co-defendant to settle old scores. In
this regard they note that Epps had a motive to attack
Armstead and Wilson: Armstead demoted Epps from his
high-level position, and Wilson’s complaint led to the
demotion. The government responds that any impeach-
ment value would have been cumulative of other im-
peachment at trial, where Epps was thoroughly dressed
down before the jury as a liar, a braggart, and a thug. But
the government concedes that no impeachment at trial
tended to show that Epps was biased against some of his
co-defendants or that he was willing to lie or provide
selective testimony to punish his enemies.
If the government deliberately or inadvertently with-
holds evidence that is material and favorable to the
defense, it violates the defendant’s right to a fair trial,
which is guaranteed by due process. See Brady v. Mary-
land, 373 U.S. 83 (1963); Boss v. Pierce, 263 F.3d 734, 739-
40 (7th Cir. 2001). This rule applies equally to impeach-
ment and exculpatory evidence. Giglio v. United States,
405 U.S. 150 (1972). The government does not dispute that
it withheld Epps’s letters, and its efforts to show that the
letters are not favorable to the defendants are unpersua-
sive. Epps said he tried to “get” certain gang members (one
of whom, Sundown, was a GD board member who autho-
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 7
rized Epps’s demotion) and boasted that he “got Aaron off.”
While the evidence would be even more damning if Epps
had said that he wanted to “get” these particular defen-
dants, it is undisputed that he had reason to go after
Wilson and Armstead. Evidence that a witness is willing
to use his role in a prosecution to target his enemies is
certainly favorable to defendants who are his enemies.
The claim therefore turns on materiality, which in the
Brady context is the same thing as prejudice. Evidence
is material if there is a reasonable probability that its
proper disclosure would have led to a different result at
trial. See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). In
other words, the inquiry is whether, in light of the sup-
pression, the trial produced a verdict worthy of confidence.
Id.; United States v. Knight, 342 F.3d 697, 705 (7th Cir.
2003). Suppressed evidence that could have been used
to impeach a government witness can affect the outcome
if it is not cumulative of other impeachment offered at
trial. See Simental v. Matrisciano, 363 F.3d 607, 614 (7th
Cir. 2004); United States v. Fallon, 348 F.3d 248, 252 (7th
Cir. 2003). Thus, evidence that provides a new basis
for impeachment is not cumulative and could well be
material. See Banks v. Dretke, 540 U.S. 668, 700-02 (2004);
see also Napue v. Illinois, 360 U.S. 264, 270 (1959). For
instance, in the Supreme Court’s recent decision in Banks
v. Dretke, prosecutors withheld that one of their key
witnesses had been paid as a police informant for his
participation in the prosecution. The witness was im-
peached at trial for having been a paid informant in the
past, and for having been a drug abuser. The Court held
that the suppressed evidence was not cumulative of other
impeachment: “Neither witness called to impeach Farr
gave evidence directly relevant to Farr’s part in Banks’s
trial.” 540 U.S. at 702. Since Farr’s testimony was critical
to the prosecution, the evidence was material and its
suppression deprived the defendant of due process. See
8 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
also Silva v. Brown, 416 F.3d 980, 988-89 (9th Cir. 2005);
Conley v. United States, 415 F.3d 183, 191-92 (1st Cir.
2005); Slutzker v. Johnson, 393 F.3d 373, 387 (3d Cir.
2004); Crivens v. Roth, 172 F.3d 991, 998-99 (7th Cir.
1999).
Here, the government argues that any impeachment
value from the Epps letters was cumulative of other
impeachment at trial. But showing (as the defense did)
that Epps had a long criminal record, lied all the time,
and was testifying as part of a deal with prosecutors is
not the same as showing that he was willing to use his
position in the prosecution to get even with gang mem-
bers who had crossed him. This was a new and potentially
powerful line of inquiry that the defense could have used
to undermine the value of Epps’s testimony.
Nevertheless, showing that the Epps letters would
afford a unique basis for impeachment does not end the
materiality inquiry. The question is whether there was
a reasonable probability of a different verdict had the
letters been disclosed, Kyles, 514 U.S. at 433, and here
there was not. Undisclosed impeachment evidence would
not produce a different result if the testimony of the
witness against whom it is offered was strongly corrobo-
rated by other evidence. See Conley, 415 F.3d at 190-91
(impeachment evidence material because witness pro-
vided the only credible evidence against defendant); Horton
v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005) (same);
Slutzker, 393 F.3d at 378 (same); Crivens, 172 F.3d at
998 (same). Here, Epps’s testimony was by no means
the only—or even the best—evidence that Armstead,
Wilson, and Thomas participated in the GD drug con-
spiracy. That evidence is extensive: Armstead was re-
corded discussing the drug business and his role in it in a
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 9
half-dozen meetings and phone calls,2 and Wilson and
Thomas both participated, in concert with other GD
members, in numerous drug sales to undercover agents.
Moreover, the other cooperating co-defendants also
confirmed the appellants’ role in the conspiracy. The
appellants cling to an instance in which the district
court referred to Epps’s testimony as the “centerpiece” of
the government’s case, but that is not the whole story. A
full transcription of the passage in question shows that the
district court, in denying the motion for a new trial, felt
that other evidence corroborated Epps’s testimony:
The question I have to consider is whether it’s
reasonable to believe this could have made a
difference. I know one of the arguments the gov-
ernment has made is that there was substantial
evidence apart from Epps’s testimony that the jury
could have relied upon to find a—to find the
defendants in this case guilty. Mr. Epps’s testi-
mony was lengthy and certainly was a centerpiece
or a large section of the government’s proof, but it
wasn’t all that the government had in support of
the convictions in this case.
In light of the substantial amount of evidence that
corroborated Epps’s testimony, the government’s failure
to disclose further impeachment material against Epps
does not undermine our confidence in the verdict. The
district court did not abuse its discretion in denying the
motion for a new trial.
2
For this reason, Armstead’s perfunctory challenge to the
sufficiency of the evidence supporting his conviction for con-
spiracy fails.
10 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
B. Armstead’s additional trial issues
In his motion for a new trial, Armstead raised several
other issues beyond the Brady claim discussed above. The
district court did not abuse its discretion in denying the
motion. Armstead first contends that the district court
wrongfully admitted evidence of his prior bad act, see Fed.
R. Evid. 404(b), when it allowed testimony that he had
ordered the beating (or “violation,” in GD parlance) of a
wayward gang member. But this evidence was not a prior
bad act; it was part of the conspiracy, showing Armstead’s
leadership role and shedding light on how the GDs en-
forced their drug sale policies. See United States v.
Hernandez, 330 F.3d 964, 970-71 (7th Cir. 2003) (evidence
of beatings admissible to show how drug-selling gang
conducted business).
Next, Armstead argues that the district court erred by
allowing the government to provide the jury with a tran-
script of the October 2001 meeting, the tape recording of
which was played at trial but was difficult to hear. (The
gang meeting was held in a public park near a noisy
highway, perhaps, the government suggests, for the very
purpose of frustrating any turncoats wearing a wire.)3 A
district court has broad discretion to admit a transcript of
an audio recording as an aid to the jury. United States v.
Breland, 356 F.3d 787, 794-95 (7th Cir. 2004). Moreover,
the district court repeatedly admonished the jury that
only the tape was evidence, and that if jurors could not
make out parts of the recording, they should disregard the
corresponding portions of the transcript. That is all our
precedents require. See United States v. Ceballos, 385
F.3d 1120, 1124 (7th Cir. 2004).
3
The defense’s proffered expert witness in voice identification
was unable to make a positive identification of Armstead’s voice
on the tape. The expert conceded, however, that the transcript
of the October 2001 meeting seemed generally accurate.
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 11
Armstead next contends that the district court should
have given an entrapment instruction. (The government
directed cooperating co-defendant Collins to call Armstead
in order to talk about drugs.) But when Armstead re-
quested the instruction, the district court demanded an
offer of proof that he could put on an entrapment defense,
and Armstead did not pursue the matter further. We
cannot say that we are surprised: an entrapment de-
fense would have required showing that Armstead was
induced to perpetrate a crime he was not predisposed to
commit. United States v. Burke, 425 F.3d 400, 408-09 (7th
Cir. 2005). Before Collins’s phone calls, Armstead was
caught in several meetings and phone conversations
discussing the substantial drug business over which he
presided. He could not possibly have disproven his predis-
position to commit further drug crimes.
Finally, Armstead argues that the district court erred
by denying his motion to sever his trial from the trials of
Wilson and Thomas. But there is a strong preference that
co-conspirators be jointly tried, particularly when they
were indicted together. See United States v. Souffront, 338
F.3d 809, 828 (7th Cir. 2003). Moreover, a defendant
challenging the denial of a motion to sever must show
actual prejudice, id., and Armstead does not do this. He
contends that separate trials would have allowed him to
examine Wilson and Thomas as witnesses, but all he
says they would have shown is that he did not personally
sell drugs at the 340 building. Even assuming that he
could get his co-defendants to testify on his behalf,
Armstead was charged as the leader who controlled the
conspiracy from afar. The fact that he didn’t sell drugs
himself proves nothing.
C. Sentencing matters
Armstead, Wilson, and Cohn raise various challenges
to their sentences. As the outset, Cohn’s appeal must be
12 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
dismissed. He pleaded guilty, and his plea agreement
contains a waiver of the right to appeal any sentence lower
than the statutory maximum except for a claim of invol-
untarily pleading guilty or receiving ineffective assist-
ance of counsel during plea negotiations. (Those claims, if
successful, would undercut the guilty plea itself, and
would allow an appeal since a plea waiver stands or falls
with the plea agreement. United States v. Whitlow, 287
F.3d 638, 640 (7th Cir. 2002).) Cohn does not mention the
waiver at all; he simply plunges ahead with his sentenc-
ing argument. Waivers of appeal are enforceable, Roberts
v. United States, 429 F.3d 723, 724 (7th Cir. 2005), and
since Cohn does not seek to rescind his guilty plea or
otherwise overcome the waiver, we have no choice but to
dismiss his appeal.
1. Armstead’s sentencing issues
Armstead makes three sentencing arguments. The first
two are his alone; the third he shares with Wilson.
Armstead’s first argument is that the district court erred
by finding him responsible for 1.5 kilograms of crack
cocaine. We review the district court’s findings as to drug
quantity for clear error. United States v. Romero, 469 F.3d
1139, 1147 (7th Cir. 2006). Armstead contends that since
he only joined the conspiracy in September 2001—a fact
that the government does not dispute—he could not
possibly have overseen the sale of 1.5 kilograms of crack
cocaine. The argument is meritless. Armstead is liable
for the reasonably foreseeable amount of drugs sold by his
co-conspirators. See United States v. Olson, 450 F.3d 655,
685 (7th Cir. 2006). The district court relied on the calcu-
lations of the presentence report, in which the probation
office noted that Butts and Banks alone admitted to sell-
ing 2.5 and 3 kilograms respectively between fall 2001
and late summer 2002. Armstead has no response to this.
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 13
In addition to Butts and Banks, several dozen other
individuals under Armstead’s control were selling crack
from the 340 building. It is clear, then, that Armstead
was easily responsible for 1.5 kilograms, and that the
district court did not clearly err. See United States v.
Jones, 454 F.3d 642, 651-52 (7th Cir. 2006).
Next Armstead contends that the district court wrong-
fully denied his motion for a downward departure for
“cultural assimilation.” At sentencing, Armstead’s counsel
clarified that the crux of this argument was that Armstead
was raised in the Chicago projects, where a culture of
violence, economic hopelessness, and drug abuse doomed
him to a life of crime. This was an awkward shoehorn
into a claim for departure based on cultural assimilation,
which ordinarily pertains to aliens who have illegally
reentered the United States after being deported and seek
a reduced sentence for the crime of reentry because they
had adapted to life in this country. E.g., United States v.
Roche-Martinez, 467 F.3d 591, 595 (7th Cir. 2006). Indeed,
considered on its merits rather than by the title Armstead
has chosen, the argument was probably foreclosed at the
time of sentencing by U.S.S.G. § 5H1.12, which treats
“circumstances indicating a disadvantaged upbringing” as
a forbidden sentencing factor. See generally United States
v. Pullen, 89 F.3d 368 (7th Cir. 1996). We think the
appropriate place for this argument, if there is one, is
under the factors set forth in 18 U.S.C. § 3553(a). See
United States v. Wallace, 458 F.3d 606, 608-09 (7th Cir.
2006). Since, as explained below, Armstead is entitled
to a limited remand under United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), he can make this argument to
the district court.
2. Armstead’s and Wilson’s joint sentencing issue
Finally, Armstead and Wilson contend that they are
entitled to remands for resentencing because their sen-
14 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
tences were imposed prior to the Supreme Court’s deci-
sion in United States v. Booker, 543 U.S. 220 (2005).
Armstead does not contend that he objected at sentencing
to the mandatory application of the Guidelines; Wilson
does, but he is mistaken. He argued at sentencing that
various enhancements based on facts found by the judge
were unsupported by the evidence. That is not the same
as an argument that increasing the sentence violated the
Sixth Amendment or Apprendi v. New Jersey, 530 U.S. 466
(2000). See United States v. Garcia, 439 F.3d 363, 368-89
(7th Cir. 2006); United States v. Schlifer, 403 F.3d 849, 854
(7th Cir. 2005). Review therefore is for plain error only,
and both defendants are entitled to a limited remand
under Paladino to determine whether the district court
would impose the same sentence if required to resentence
under an advisory Guidelines regime.
Armstead and Wilson seek more—they want us to
overrule Paladino. They argue that the factors in 18 U.S.C.
§ 3553(a) took on new significance after Booker such that
they would now wish to present (and support with new
evidence) a more comprehensive argument under the
factors than they did at the original, pre-Booker sentencing
hearing. We have already declined several invitations to
abandon Paladino—see United States v. Brock, 433 F.3d
931, 938 (7th Cir. 2006); United States v. Re, 419 F.3d 582,
583 (7th Cir. 2005)—and we decline this one as well. It is
true that the Paladino process is a limited one in which
the district court is confined to the original record, along
with arguments from the parties. See United States v.
Bonner, 440 F.3d 414, 417 (7th Cir. 2006); Paladino, 401
F.3d at 484. But the defendants are free to submit vigorous
arguments under the § 3553(a) factors, and if any of those
points requires new evidence, counsel can make a proffer
to the district court. If the argument is promising enough
that the district court is inclined to resentence, then we
Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668 15
will remand for full resentencing and any new evidence
can be introduced at the new sentencing hearing.
D. Collins’s counsel’s motion to withdraw
The last matter to be settled is the motion to withdraw
filed by Collins’s counsel under Anders v. California, 386
U.S. 738 (1967). Counsel contends that any appeal would
be frivolous. Because his brief is facially adequate, we
confine our review to the potential issues that he raises,
along with those that Collins himself identifies in a
response under Circuit Rule 51(b). United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002).
Collins cooperated with the government and was re-
warded with a sentence of half the bottom end of his
Guidelines range. He received 180 months’ imprisonment,
compared to his co-defendants’ sentences ranging from
240 months to life. Collins’s plea agreement, like Cohn’s,
contains a waiver of the right to appeal. But as we
noted above, a plea agreement that is entered into invol-
untarily or as a result of ineffective assistance from
counsel cannot stand, and the waiver of appeal would
fall with the plea agreement. Collins contends in his
Rule 51(b) submission that he could raise both of these
points in an appeal. Either argument, however, would be
frivolous. Collins stated in open court that he understood
his rights under Federal Rule of Civil Procedure 11, and
that his guilty plea was knowing and voluntary. He would
therefore face an uphill struggle in convincing an appel-
late court otherwise. United States v. Cieslowski, 410 F.3d
353, 358 (7th Cir. 2005). Collins does not say in what way
the district court’s colloquy under Federal Rule of Crim-
inal Procedure 11 was insufficient, and we see none. Nor
does he give any specifics as to how counsel rendered
ineffective assistance in advising him to accept the plea
agreement. Indeed, there is no evidence in the record of
16 Nos. 04-1594, 04-1595, 04-1763, 04-1999 & 05-2668
counsel’s advice, which is why an ineffective assistance
claim is more appropriately raised in a collateral proceed-
ing than on direct review. See, e.g., United States v. Harris,
394 F.3d 543, 557 (7th Cir. 2005).
III. CONCLUSION
For these reasons, we AFFIRM the convictions of
Armstead, Wilson, and Thomas; order a LIMITED REMAND
as to the sentences of Armstead and Wilson; DISMISS
Cohn’s appeal; and GRANT counsel’s motion to withdraw
and DISMISS Collins’s appeal.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-16-07