United States v. Eric Rogers ( 2019 )

NONPRECEDENTIAL DISPOSITION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, 2019
Decided October 24, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18-3100
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:13-CR-00952(1)
ERIC ROGERS, Jorge L. Alonso,
Defendant-Appellant. Judge.
ORDER
Eric Rogers pleaded guilty to conspiring to commit a Hobbs Act robbery,
18 U.S.C. § 1951(a), and brandishing a firearm during a robbery. 18 U.S.C. § 924(c). His
plea agreement contains a waiver. Rogers “waive[d] the right to appeal his conviction,
any pre-trial rulings by the court, and any part of the sentence” if the government
moved under “Guideline § 5K1.1” to reduce his sentence for providing it with
substantial assistance. The government so moved, and the court granted the motion. It
sentenced Rogers to 210 months’ imprisonment and concurrent three-year terms of
supervised release. Rogers now appeals from that final judgment. His lawyer, however,
moves to withdraw from the appeal, arguing that it is frivolous. See Anders v. California,
No. 18-3100 Page 2
386 U.S. 738 (1967). Counsel’s brief appears to address adequately the issues that an
appeal of this kind might be expected to raise, so we limit our review to those subjects.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
First, counsel explores whether Rogers could challenge his guilty plea. Although
Rogers waived his right to challenge his conviction, “[a]n appeal waiver stands or falls
with the underlying guilty plea.” United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013).
The plea’s validity depends on whether, based on the plea colloquy, Rogers’s plea was
knowing and voluntary. See id. Rogers wants to challenge his plea, but he did not move
to withdraw his guilty plea in the district court, so we would review a challenge for
plain error. See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). Counsel
considers arguing that the plea was not knowing or voluntary because, in the only
deviation from the colloquy required by Rule 11, the court did not inform Rogers of its
authority to impose restitution or enter a forfeiture judgment. See FED. R. CRIM. P.
11(b)(1)(J), (K). But we agree with counsel that a challenge on these grounds would be
frivolous. As counsel explains, the plea agreement informed Rogers that he would have
to pay up to $250,000 on each count, and he testified that he reviewed the agreement
with counsel and understood its terms. See United States v. Adams, 746 F.3d 734, 746–47
(7th Cir. 2014).
Next, counsel ponders whether Rogers could challenge the constitutionality of
the statutes under which he was convicted. Rogers’s guilty plea does not foreclose
constitutional challenges to the statutes. See Class v. United States, 138 S. Ct. 798, 803–05
(2018). Nonetheless, any such arguments would be frivolous. The Hobbs Act, 18 U.S.C.
§ 1951(a), is based on “the constitutional power Congress has to punish interference
with interstate commerce by extortion, robbery or physical violence.” Taylor
v. United States, 136 S. Ct. 2074, 2079 (2016) (quoting Stirone v. United States, 361 U.S. 212,
215 (1960)). And a conviction under 18 U.S.C. § 924(c)(3)(A) for brandishing a firearm
during a “crime of violence” is constitutional where the crime is Hobbs Act robbery, as
occurred here. See United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017).
Counsel then considers, and rightly rejects, a potential challenge to Rogers’s
prison sentence. Rogers waived his right to appeal “any part of the sentence” if the
government moved to reduce his sentence under § 5K1.1 of the Guidelines, which it
did. Thus, any challenge to the sentence would be fruitless. See United States v. Polak,
573 F.3d 428, 432 (7th Cir. 2009). Moreover, the sentence is within the guideline range
No. 18-3100 Page 3
and below the statutory minimum. Given the waiver and the within-range sentence,
any attack on the substantive reasonableness of the sentence would be pointless.
Finally, counsel evaluates whether Rogers could challenge any conditions of
supervised release. Although the waiver would block this challenge, counsel notes a
discrepancy between the oral pronouncement and the written condition regarding
Rogers’s freedom of movement. Even aside from the waiver, counsel correctly
concludes that an argument on this issue would be frivolous. At sentencing, the district
court orally forbade Rogers from leaving the “judicial jurisdiction,” using language that
we have discouraged because of its vagueness. See United States v. Hudson, 908 F.3d
1083, 1084–85 (7th Cir. 2018). But the court immediately and appropriately clarified that
the term “jurisdiction” referred to the geographic “boundaries of the Northern District”
in which Rogers would be supervised. And the written judgment properly forbids
Rogers from “knowingly leaving the judicial district” of supervision. Thus, no
correction is needed. See United States v. Collins, 2019 WL 4744706, at *3–4 (7th Cir.
Sept. 30, 2019) (requiring corrective remand only where the word “jurisdiction” rather
than “district” appears in written judgment).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.