United States v. William Huber , 455 F. App'x 696 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 January 20, 2012
Decided January 20, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10-3922
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 10-10088-001
WILLIAM HUBER, Joe Billy McDade,
Defendant-Appellant. Judge.
ORDER
William Huber ran a Ponzi scheme that cost his investors, including close friends
and family members, more than $20 million. He waived indictment and pleaded guilty to
an information charging one count each of mail fraud, 18 U.S.C. § 1341, money laundering,
id. § 1956(a)(1)(B)(i), and engaging in a prohibited monetary transaction, id. § 1957(a). The
district judge sentenced Huber to 240 months’ imprisonment, 22 months below the bottom
of his guidelines range (262 to 327 months). Huber appeals, but his appointed attorney has
concluded that the appeal is frivolous and moves to withdraw. See Anders v. California, 386
U.S. 738 (1967). Huber opposes counsel’s motion. See C IR. R. 51(b). We review only the
potential issues identified in counsel’s facially adequate brief and Huber’s response.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 10-3922 Page 2
Huber wants his guilty pleas set aside, so counsel first considers whether Huber
could argue that his pleas were not knowing and voluntary. See United States v. Knox, 287
F.3d 667, 670–72 (7th Cir. 2002). Huber did not move to withdraw his pleas in the district
court, so we would review his plea colloquy for plain error. FED. R. C RIM . P. 52(b); United
States v. Vonn, 535 U.S. 55, 63 (2002); United States v. Ali, 619 F.3d 713, 718–19 (7th Cir. 2010).
Both counsel and Huber note that the district judge erred during the colloquy by failing to
apprise Huber explicitly of his right to plead not guilty. See FED. R. CRIM . P. 11(b)(1)(B). But
counsel correctly concludes that, under the totality of the circumstances, see United States v.
Parker, 368 F.3d 963, 968 (7th Cir. 2004); United States v. Martinez, 289 F.3d 1023, 1029
(7th Cir. 2002), we would deem the judge’s error harmless. The judge confirmed twice that
Huber understood he had the right to a jury trial but wanted to waive that right and plead
guilty. The judge also explained to Huber that if he went to trial, he would be presumed
innocent, could not be found guilty unless the jury voted unanimously to convict, and
would have the rights to remain silent, subpoena witnesses, confront his accusers, and be
represented by an attorney. Given the judge’s warnings about the rights he was waiving by
foregoing a trial, we would conclude that Huber was “undoubtedly aware” of his right to
plead not guilty. United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988) (citation omitted);
see also United States v. Morales-Robles, 309 F.3d 609, 610 (9th Cir. 2002).
Counsel next examines whether Huber could challenge the substantive
reasonableness of his sentence, but rightly concludes that such a challenge would be
frivolous. We would presume the reasonableness of Huber’s below-guidelines sentence.
United States v. Berg, 640 F.3d 239, 255 (7th Cir. 2011); United States v. Wallace, 531 F.3d 504,
507 (7th Cir. 2008). Neither counsel nor Huber has identified a sound basis to rebut this
presumption, nor have we.1
In his Rule 51(b) response, Huber proposes to argue that the district judge erred in
several of his guidelines calculations, which he adopted from the presentence report. But
we would be unable to review any of Huber’s challenges to the guidelines calculations
because he expressly waived them when, at sentencing, he withdrew all of his objections to
the PSR. United States v. Knox, 624 F.3d 865, 875 (7th Cir. 2010); United States v. Kincaid, 571
F.3d 648, 654 (7th Cir. 2009).
1
Moreover, as counsel notes, Huber benefitted from an apparent misunderstanding
on the part of the district judge, who stated that he could not give Huber a within-
guidelines sentence because “the law tells me I can’t sentence him to more than 20 years.”
The judge in fact could have imposed a within-guidelines sentence by ordering that Huber
serve partially consecutive, rather than entirely concurrent, sentences on the three counts.
See U.S.S.G. § 5G1.2(d); United States v. Russell, 662 F.3d 831, 853 (7th Cir. 2011).
No. 10-3922 Page 3
We have examined the remainder of Huber’s proposed arguments, but none merits
discussion.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.