United States v. Monta Anderson , 650 F. App'x 274 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 May 23, 2016
Decided May 24, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-3769
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 13-CR-10064-001
MONTA Y. ANDERSON, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Monta Anderson bought heroin from a Chicago supplier and distributed it in
Peoria, Illinois. Over the course of two years, he distributed more than a kilogram, some
through a coconspirator who sold directly to 21-year-old James Reader, a heroin addict.
Reader overdosed on heroin and died; two more of Anderson’s customers also
overdosed, though both survived.
Anderson pleaded guilty to conspiracy to distribute heroin, 21 U.S.C. §§ 846,
841(a)(1). As part of a binding plea agreement, see FED. R. CRIM. P. 11(c)(1)(C), Anderson
stipulated that the conspiracy had involved at least a kilogram of heroin, and also that
Reader had died from using heroin he supplied. Those stipulations resulted in a
statutory penalty range of 20 years to life in prison, 21 U.S.C. § 841(b)(1)(A), and the
No. 15-3769 Page 2
parties agreed that 20 years was the appropriate sentence. During the plea colloquy
Anderson told the district court that he might have a factual defense to causation, since,
according to the defendant, Reader had been buying heroin from other dealers and also
abusing prescription drugs. Anderson assured the judge, however, that he was standing
by the plea agreement, including its stipulation about the cause of Reader’s death. The
district court accepted the plea agreement and sentenced Anderson to 223 months (after
a reduction for time served in state prison for a related offense, see U.S.S.G. §§ 5G1.3(b),
5K2.3). That term is significantly below the guidelines range of 360 months to life.
As part of the plea agreement, Anderson had waived his right to file a direct
appeal. Yet he still filed a notice of appeal, and his appointed counsel now seeks to
withdraw on the ground that all potential appellate claims are frivolous. See Anders v.
California, 386 U.S. 738, 744 (1967). Anderson opposes counsel’s motion, see CIR. R. 51(b),
because, he argues, the government could not have proved that Reader died from using
heroin he supplied. See Burrage v. United States, 134 S. Ct. 881, 892 (2014) (holding that
statutory enhancement will not apply unless government can prove that drugs supplied
by defendant were the “but-for” cause of death or serious bodily injury). The analysis in
counsel’s Anders submission appears to be thorough, so we limit our review to the
subjects that counsel discusses, plus the additional issue presented by Anderson.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
Any challenge to the appeal waiver would be frivolous unless Anderson’s guilty
plea was invalid. See United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); United States v.
Kilcrease, 665 F.3d 924, 929 (7th Cir. 2012). After this appeal was filed, Anderson moved
to have his guilty plea set aside on the ground that the government had never proved he
caused Reader’s death. That motion was denied because of the pending appeal, but
Anderson’s factual premise was incorrect: His stipulation was proof enough. 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.”). The
motion’s legal premise also was incorrect, since the statutory enhancement for causing
death or serious injury is a sentencing factor that has nothing to do with the validity of a
guilty plea. See United States v. Lawler, No. 15-1496, 2016 WL 1055857, at *3 (7th Cir. Mar.
16, 2016) (leaving undisturbed defendant’s conviction by guilty plea for distributing
heroin despite vacating sentence enhancement for causing death); United States v. Duvall,
272 F.3d 825, 830 (7th Cir. 2001) (explaining that, even if government fails to prove
beyond a reasonable doubt facts necessary to support enhanced sentence, “it does not
jeopardize the conviction”).
No. 15-3769 Page 3
Regardless, Anderson’s lawyer (who also represented the defendant in the
district court) correctly asserts that an appellate challenge to Anderson’s guilty plea
would be frivolous because, as counsel notes, the district judge substantially complied
with Federal Rule of Criminal Procedure 11 when accepting Anderson’s plea.
See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013); United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012). The district judge placed Anderson under oath and
admonished him about the pending charge, the statutory penalties, his various trial
rights, and the court’s ability to impose a sentence outside the guidelines range. See FED.
R. CRIM. P. 11(b)(1); United States v. Bowlin, 534 F.3d 654, 656–57 (7th Cir. 2008). The court
also ensured that Anderson’s guilty plea was supported by an adequate factual basis
and made voluntarily. See FED. R. CRIM. P. 11(b)(2), (3). And since an appellate challenge
to the guilty plea would be frivolous, the appeal waiver is dispositive.
Moreover, Anderson’s appeal would be frivolous even without the appeal
waiver. He bargained for a specific sentence, and that agreement became binding when
the district court accepted it. See FED. R. CRIM. P. 11(c)(1)(C), (c)(3)(A); United States v.
Sanford, 806 F.3d 954, 960 (7th Cir. 2015); United States v. Cieslowski, 410 F.3d 353, 363–64
(7th Cir. 2005). The sentence was lawfully imposed and is the term that Anderson had
agreed to accept, and thus we lack jurisdiction to review the sentence. See 18 U.S.C.
§ 3742(a)(1), (c)(1); United States v. Barnes, 83 F.3d 934, 941 (7th Cir. 1996).
Finally, in his Rule 51(b) response, Anderson argues that counsel’s performance
was deficient in several ways. Yet, a claim of ineffective assistance is best reserved for
collateral review where the record can be better developed. 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).
That is especially so when a defendant is represented on appeal by the lawyer whose
performance is questioned. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.