NONPRECEDENTIAL DISPOSITION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
Argued September 15, 2010
Decided November 24, 2010
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 08‐1708
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois
v. No. 06‐30161
EARL LIPPERT, G. Patrick Murphy, Judge.
Defendant‐Appellant.
O R D E R
Earl Lippert pleaded guilty to leading a large methamphetamine manufacturing
conspiracy and was sentenced to the statutory maximum on charges stemming from his
role, including life for one count. The crux of his appeal concerns the judge’s assumption
that a “notice of enhancement” was filed which affected the statutory maximum penalty for
his sentence on two counts. In fact, no notice was filed and Lippert was not eligible for one.
Thus, the judge plainly erred by sentencing Lippert to the incorrect statutory maximum for
those two counts. But because we are convinced that Lippert would have been sentenced to
the properly calculated statutory maximums, we correct his sentence on appeal rather than
remand for further proceedings.
No. 08‐1708 Page 2
I.
Lippert was a long‐time meth user, and at some point he started manufacturing it.
This was not a small, personal operation: the pre‐sentence report estimated that his
operation produced almost five kilograms of meth. Naturally an enterprise this large
required workers and supplies. At least five others worked with Lippert, including his wife
who served as a lookout keeping people off their property during his “cooks.” Cooks is the
colloquial description used for the manufacture of this drug. These cooks called for massive
amounts of materials. While Lippert purchased or traded drugs for some of the raw
materials, he stole others.
Lippert had an estranged teenage daughter from a previous relationship, and they
re‐united at some point during the conspiracy. Lippert quickly introduced her into his
illegal drug enterprise. He had her accompany him when he went to gather supplies. She
went with him to steal batteries and Sudafed packs from stores, helped prepare the
materials for the cooks, and even went with him to handle the anhydrous ammonia, which
is an essential and highly volatile ingredient for making methamphetamine.
In return for helping, Lippert supplied his daughter with a steady supply of meth.
While living with Lippert, she was high most of the time, and Lippert frequently had sex
with her. Making matters worse, one night after Lippert smoked meth with her, she
climbed a tree, lost her balance, and fell, leaving her paralyzed from the waist down.
Lippert visited her in the hospital, and there he continued to get high with her. At least
twice he had sex with her after her injury.
Eventually Lippert and his co‐conspirators were indicted. On the morning of trial
and without a plea agreement, Lippert pleaded guilty to all four counts: conspiracy to
manufacture meth, distribution of meth to a minor (his daughter), and two counts of
manufacturing meth. After pleading guilty but before sentencing, Lippert sent a letter to the
district court asking to withdraw his plea. He claimed he didn’t want to plead guilty, and
that his attorney had not communicated with him before the trial. The district court
wouldn’t let Lippert withdraw his plea and a sentencing hearing was held.
At the sentencing hearing, the government called several witnesses who established
that Lippert threatened a witness, gave his daughter meth, and had her handle anhydrous
ammonia. After hearing from the government, Lippert testified and denied giving his
daughter meth or involving her in the operation. The judge did not find Lippert credible.
The judge then made findings about Lippert’s attempts to influence witnesses and the
No. 08‐1708 Page 3
danger he exposed his daughter to, including the actual physical handling of the ammonia
and the effect meth has had on her life. With those findings, Lippert’s properly calculated
guideline range was life imprisonment.
The judge then gave an involved statement of reasons for the punishment he was
imposing. Much of the statement focused on Lippert involving his daughter in this way of
life. The judge pointed out that Lippert was her father and that he was supposed to protect
her. Yet, by exposing her to meth, he destroyed her life. The judge was particularly clear
that
getting high with a 14‐year‐old child on methamphetamine and then having sexual
intercourse, that shows . . . the extent [that] drugs have taken over what would be
your entire personality. In other words, there is simply no moral compass left.
There is nothing. Nothing remains.
With this view of Lippert’s character and crime, he made clear the punishment he had in
mind:
You’re going to get life. You are going to die in federal prison. You are going
to do it because you abused a minor child who in nature had every reason to
expect and believe that her dad would protect and nurture her and protect
her from the hard world that all children have to grow up in.
The judge then imposed the statutory maximum sentence of life for count one and 480
months for count two. Again, counts three and four present the problem on appeal.
The pre‐sentence report stated that a
21 U.S.C. § 851 notice of enhancement was filed.
Had one been filed, it would have raised the statutory maximum penalty for counts three
and four from 240 months to 360 months. The judge relied on the pre‐sentence report and
neither defense counsel nor the prosecutor corrected him and let him know that, in fact, no
such notice had been filed. Laboring under this mistake, the judge sentenced Lippert to the
incorrect statutory maximum of 360 months.
Lippert’s trial attorney did not move under Rule 35(a) to correct the sentence;
instead, after filing his notice of appeal, he filed two Anders briefs, seeking to dismiss the
appeal. See Anders v. California,
386 U.S. 738 (1967) (allowing appointed counsel to request
permission to withdraw when an appeal is frivolous). At that time, we noted that issues
remained and eventually discharged the attorney and assigned new counsel. On appeal,
No. 08‐1708 Page 4
Lippert’s current counsel now argues that the illegal sentence for counts three and four
requires re‐sentencing. Lippert pro se also filed a supplemental brief raising three issues: the
withdrawal of his guilty plea, the improper use of hearsay evidence at sentencing, and the
district court’s failure to address the
18 U.S.C. § 3553(a) sentencing factors.
II.
At sentencing, Lippert did not object to the court’s finding that his statutory
maximum for counts three and four was 360 months. The government argues that this
means Lippert has waived the argument for appeal. But waiver requires more than simply
failing to object: “Waiver occurs when a criminal defendant intentionally relinquishes a
known right.” United States v. Clark,
535 F.3d 571, 577 (7th Cir. 2008) (quotation omitted).
When there is no evidence that the defendant knew about his right to assert a challenge or
where, as we have here, there would be no strategic reason not to seek a lower sentence, the
challenge is forfeited, not waived. See, e.g., United States v. Gibson,
356 F.3d 761, 765 (7th Cir.
2004) (reviewing an illegal sentence under plain error). Thus, we review the matter for
plain error and ask four things: whether there was error; whether it was plain; whether it
affected Lippert’s substantial rights; and whether it seriously impugns the fairness,
integrity, or public reputation of the judicial proceedings. United States v. Anderson,
604 F.3d
997, 1002 (7th Cir. 2010).
It is rarely, if ever, arguable that an illegal sentence does not constitute plain error.
United States v. Pawlinski,
374 F.3d 536, 540‐41 (7th Cir. 2004). By its very nature, there is an
error, it is plain, it affects the defendant’s substantial rights, and it impugns the reputation
of the judicial proceedings. On these last two points, we have been particularly forthright:
“It is a miscarriage of justice to give a person an illegal sentence that increases his
punishment, just as it is to convict an innocent person.” United States v. Paladino,
401 F.3d
471, 483 (7th Cir. 2005). And by allowing an illegal sentence “to stand would impugn the
fairness, integrity, and public reputation of the judicial proceedings.” Gibson,
356 F.3d at
767. Thus, the district court committed plain error by sentencing Lippert beyond the
statutory maximum for counts three and four.
When we find plain error in a defendant’s sentence, our normal course of action is to
retain jurisdiction of the appeal and order a limited remand. United States v. Macedo,
406
F.3d 778, 790 (7th Cir. 2005). But in certain limited circumstances, remand is unnecessary.
When a sentence violates a statutory right, we “may in a proper case ‘correct the sentence
rather than remanding the case for the execution of [a] ministerial act.’” United States v.
Melody,
863 F.2d 499, 506 n.7 (7th Cir. 1988) (quoting United States v. Mathis,
579 F.2d 415,
No. 08‐1708 Page 5
420 (7th Cir. 1978)). This is such a case. It is better simply to correct the error than to
remand it for the district court to go through the trouble of another sentencing hearing.
Two aspects of Lippert’s sentencing assure us that this is the correct course to take. First, at
sentencing the judge did not rely on the notice of enhancement or Lippert’s previous
convictions for anything but establishing the statutory maximum. The judge made no
references to Lippert’s recidivism, and instead focused his reasoning on Lippert’s instant
crimes, giving particular attention to the effect they had on his daughter. Second, the judge
was intent on giving Lippert the maximum penalty allowed under the law. Indeed, he
gave Lippert the statutory maximum for each count and assured him “he was going to die
in federal prison.” This convinces us that if we chose to remand this case for re‐sentencing,
Lippert would receive the statutory maximum for each count of 240 months. Thus, we will
exercise our discretion and direct that Lippert’s sentence be modified on counts 3 and 4 and
reduced from 360 months to 240 months for both counts.
III.
Lippert also raises three issues in his supplemental brief. He argues that the judge
erred by not allowing him to withdraw his guilty plea, using hearsay evidence at
sentencing, and failing to address the
18 U.S.C. § 3553(a) sentencing factors. We address
them in reverse order.
Lippert does not challenge the guideline calculation, only the district court’s limited
discussion of the § 3553(a) factors. Although the judge did not walk through each factor
and state how it supported Lippert’s sentence, the judge adequately explained his reasons,
consistent with § 3553(a), for imposing the sentence he did. That is all we require. United
States v. Dale,
498 F.3d 604, 611‐12 (7th Cir. 2007). The judge does not need to rehearse all
the § 3553(a) considerations. Id. at 612. And here, Lippert’s unspeakable abuse was
extremely detrimental if not ruinous to his daughter’s life—physically, mentally, and
perhaps morally. In this circumstance, the judge need not say more.
Lippert also challenges the district court’s reliance on hearsay testimony at
sentencing. It is long established that “sentencing courts are allowed to consider hearsay
testimony.” United States v. House,
551 F.3d 694, 698 (7th Cir. 2008). And some of the
evidence about Lippert’s daughter and her role in the conspiracy was first‐hand. Thus, there
is no merit to Lippert’s argument.
Finally, Lippert argues that the judge erred by not allowing him to withdraw his
plea. We review the district court’s denial of Lippert’s motion to withdraw his guilty plea
No. 08‐1708 Page 6
for an abuse of discretion. United States v. White,
597 F.3d 863, 867 (7th Cir. 2010). After a
guilty plea is accepted but before sentencing, a defendant may withdraw his plea upon
showing a “fair and just reason” for doing so. Fed. R. Crim. P. 11(d)(2)(B). This includes
when the plea was not entered into “voluntarily, knowingly, and intelligently, with
sufficient awareness of the relevant circumstances and likely consequences.” Bradshaw v.
Stumpf,
545 U.S. 175, 182 (2005) (quotation omitted).
Lippert argues that he should have been allowed to withdraw his plea because he
was pressured into it by his lawyer who assured him that once the jury saw Lippert’s
daughter testify from a wheelchair, the jury would “put me in hot grease.” While the Eighth
Amendment prohibits such sentences, the illustrative effect of that statement is not lost on
us. Taken in context, the defense counsel expressed his opinion that this was a bad case to
take to trial and Lippert’s daughter would be a sympathetic and altogether devastating
witness against the defense. Lippert agreed and pleaded guilty. The fact that he later re‐
assessed the decision and now claims that he didn’t do it is not a fair and just reason to
withdraw his plea. “[C]laims of innocence alone do not mandate permission to withdraw a
plea.” United States v. Groll,
992 F.2d 755, 758 (7th Cir. 1993). Rather, a defendant must
substantiate his claims with evidence of his innocence.
Id. Lippert didn’t produce any
evidence of his innocence. Therefore, the district court did not abuse its discretion in
denying Lippert’s motion to withdraw his plea.
IV.
It was plain error to sentence Lippert above the statutory maximum for counts three
and four. We direct that Lippert’s sentence be modified accordingly: his sentence for counts
three and four will be reduced from 360 months to 240 months. Further, his supervised
release for counts 2, 3, and 4 will be reduced to five years. In all other respects, the
judgment of the district court is AFFIRMED AS MODIFIED.
