United States v. Stephen Hood , 545 F. App'x 557 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 November 26, 2013
Decided November 26, 2013
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-1284
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:06CR00008-21
STEPHEN H. HOOD,
Defendant-Appellant. Larry J. McKinney,
Judge.
ORDER
Stephen Hood and 25 others were charged with conspiracy to distribute
methamphetamine during 2005 and 2006. See 21 U.S.C. §§ 846, 841(a)(1). Hood pleaded
guilty. The indictment alleges—and Hood admitted during his plea colloquy—that the
conspiracy involved at least 500 grams of a mixture containing methamphetamine; that
quantity was enough to subject Hood to a prison term of 10 years to life. See id.§ 841(b)(1)(A)(vii). The actual drug quantity, however, was closer to 90 kilograms which
yielded a guidelines imprisonment range of 292 to 365 months. The district court
sentenced Hood to 360 months’ imprisonment and 5 years’ supervised release. No fine
was imposed.
No. 13-1284 Page 2
Hood was sentenced in 2008. He instructed his appointed lawyer to file a notice
of appeal, but counsel told Hood that an appeal would be fruitless and disregarded the
defendant’s directive. Hood later filed a motion claiming that counsel had rendered
ineffective assistance by not filing a notice of appeal. See 28 U.S.C. § 2255; Roe v. Flores-
Ortega, 528 U.S. 470, 477 (2000). The district court granted that motion and, in January
2013, reentered the judgment of conviction to restart the time for Hood to file his direct
appeal. Hood then filed a notice of appeal, but his new counsel asserts that the appeal is
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Hood
has not accepted our invitation to respond to the appointed lawyer’s motion. See CIR. R.
51(b). We limit our review to the potential issues identified in counsel’s facially
adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir. 2002).
Counsel is uncertain whether Hood wants to challenge his guilty plea, but this
ambiguity is immaterial because the lawyer’s discussion of the plea colloquy along with
our own review of the record convince us that an appellate claim would be frivolous.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Counsel recognizes that the
plea colloquy had several shortcomings: The district court neglected to inform Hood
that restitution or forfeiture could be ordered, FED. R. CRIM. P. 11(b)(1)(J), (K), that his
statements under oath during the colloquy could be used against him in a prosecution
for perjury, FED. R. CRIM. P. 11(b)(1)(A), and that he had the right to testify and present
evidence at trial, FED. R. CRIM. P. 11(b)(1)(E). Hood never moved to withdraw his guilty
plea on the basis of these omissions, and thus our review would be limited to plain
error. See United States v. Vonn, 535 U.S. 55, 62–63 (2002); United States v. Davenport, 719
F.3d 616, 618 (7th Cir. 2013). The court did not order restitution or forfeiture, but had
admonished that Hood could be fined up to $4 million, so the court’s silence about the
other financial penalties was harmless. See United States v. Fox, 941 F.2d 480, 484 (7th
Cir. 1994). The same is true of the judge’s failure to address the consequences of perjury
because no perjury prosecution is pending or contemplated. See United States v. Blalock,
321 F.3d 686, 689 (7th Cir. 2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).
Finally, although the court did not inform Hood of his right to testify, there was ample
evidence of his guilt, the right to testify is commonly known to defendants, and Hood
could infer his right to testify because he was told that he could present witnesses at
trial. See Davenport, 719 F.3d at 618.
Counsel also considers whether Hood could raise an appellate claim premised on
Alleyne v. United States, 133 S. Ct. 2151 (2013), which holds that facts supporting an
enhanced statutory minimum penalty (other than for recidivism) generally must be
alleged in the indictment and found by a jury beyond a reasonable doubt. See id. at 2155,
No. 13-1284 Page 3
2163; United States v. Claybrooks, 729 F.3d 699, 707–08 (7th Cir. 2013). But Hood’s prison
term is three times the length of the statutory minimum, see 21 U.S.C. § 841(b)(1)(A)(vii),
so that threshold obviously did not dictate his sentence, making Alleyne irrelevant. The
potential appellate claim, then, concerns not the statutory minimum but the increase in
the maximum from 20 years’ imprisonment (the default maximum for a
methamphetamine conspiracy) to life. See id. § 841(b)(1)(C); United States v. Adkins, 274
F.3d 444, 454 (7th Cir. 2001). And that potential claim would be frivolous because drug
type and quantity are alleged in the indictment, Hood waived his right to a jury
determination by pleading guilty, and his admissions concerning type and quantity
during the plea colloquy satisfied the government’s evidentiary burden. See United
States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002) (“An admission is even better than a
jury's finding beyond a reasonable doubt; it removes all contest from the case.”); United
States v. Collins, 272 F.3d 984, 987–88 (7th Cir. 2001) (noting that defendant waived right
to jury determination of drug quantity by stipulating to amount of crack cocaine).
Counsel next questions whether Hood could argue that his prison sentence is
unreasonable but concludes that this potential challenge also would be frivolous. A
sentence within a properly calculated guidelines range is presumed to be reasonable.
Rita v. United States, 551 U.S. 338, 350–51 (2007); United States v. Vizcarra, 668 F.3d 516,
527 (7th Cir. 2012). The district judge decided on the 360-month sentence after
considering Hood’s arguments in mitigation and evaluating the factors in 18 U.S.C.
§ 3553(a); the judge noted that Hood had prior convictions for burglary and arson, that
the distribution conspiracy he helped run was vast, and that he had recruited a number
of people to join that operation. Counsel has not identified any reason to set aside the
presumption of reasonableness, and neither have we.
Counsel last remarks that she has not identified any basis in the record to conclude
that Hood’s former lawyer was deficient (beyond failing to file a notice of appeal). She
correctly suggests that, if Hood has reason to complain about the lawyer’s performance
on a ground not apparent in the record, he should do so on collateral review. See Massaro
v. United States, 538 U.S. 500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58
(7th Cir. 2005); Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.