United States v. Wiggins, Ronald , 138 F. App'x 842 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 9, 2005*
Decided June 30, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1698
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central
District of Illinois
v.
No. 03-CR-20032
RONALD WIGGINS,
Defendant-Appellant. Michael P. McCuskey,
Chief Judge.
ORDER
Ronald Wiggins was found guilty of robbing a credit union, 18 U.S.C.
§ 2113(a), and sentenced to 20 years’ imprisonment. His appointed appellate
attorney filed a notice of appeal but now seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he is unable to find a nonfrivolous issue for
appeal. Wiggins was notified of counsel’s motion, see Cir. R. 51(b), and has
responded. We limit our review of the record to those potential issues identified in
counsel's facially adequate brief, see United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997), and in Wiggins’ submissions. Because we conclude that all of the
*
After examining the briefs and record, we have concluded that oral argument
is unnecessary. Accordingly, this appeal is submitted on the briefs and record.
See Fed. R. App. P. 34(a)(2).
No. 04-1698 Page 2
possible arguments discussed by counsel and Wiggins are frivolous, we grant the
motion to withdraw and dismiss Wiggins’ appeal.
On the morning of April 30, 2003, Illinois state troopers stopped Wiggins for
a traffic violation on Interstate 57. They conducted a routine identification check
and were advised that there was a federal warrant for his arrest. They seized
$9,500 from a box in the trunk of the car and more than $500 from Wiggins’ pants
pockets. As he was being placed in a squad car, Wiggins exclaimed that the money
was “not bank robbery money.” Authorities later discovered that four of the bills
found on Wiggins were prerecorded “bait bills” taken during the robbery of the
Land of Lincoln Credit Union on April 19, 2003.
Witnesses identified Wiggins as the credit union robber. FBI agents Jeffrey
Warren and Brian Shepard had recognized Wiggins in a credit union surveillance
videos and photo stills from past contacts with him, and on this basis they included
Wiggins’ photo in a lineup. In addition, two of the six witnesses who viewed the
photo lineup identified Wiggins as the robber.
After the jury returned a guilty verdict, the district court sentenced Wiggins
according to the probation officer’s guideline calculations. As recounted in the
presentence report, the robbery offense carried a base offense level of 20 that was
increased by 9 levels because Wiggins took $10,000 or less from a financial
institution with the use of a firearm. See U.S.S.G. § 2B3.1(a), (b)(1), (b)(2)(B),
(b)(7)(b). However, because Wiggins had two prior controlled substance offenses, he
is a “career offender” under the guidelines; that designation jumped his offense
level to 32 and his criminal history to Category VI, with a corresponding guideline
imprisonment range of 210 to 262 months. See U.S.S.G. § 4B1.1 (a), (b). Wiggins
was sentenced to 240 months, the maximum under the statute. See 18 U.S.C.
§ 2113(a).
Counsel first queries whether Wiggins might challenge the judge’s decision
at trial to admit Agent Warren’s testimony that he recognized Wiggins from the
bank video and photo stills based on past observations of how Wiggins looks and
moves. This is precisely the kind of personal knowledge that Federal Rule of
Evidence 602 requires of witness testimony, and therefore it would be frivolous to
argue that the judge clearly abused his discretion in allowing Warren’s testimony,
which made no reference to any prior misconduct by Wiggins. See United States v.
Joy, 192 F.3d 761, 767 (7th Cir. 1999). This argument would also be frivolous
because, as counsel points out, the evidence of Wiggins’ guilt was so overwhelming
that any error in admitting the evidence was harmless. See United States v. Jones,
389 F.3d 753, 757-58 (7th Cir. 2004).
No. 04-1698 Page 3
Second, both counsel and Wiggins consider whether Wiggins might be able to
challenge his sentence under Booker v. United States, 125 S.Ct. 738 (2005). At the
sentencing hearing, Warren testified that several cooperating witnesses told him
that Wiggins admitted to committing an armed robbery of another bank, and that
victims of a convenience store robbery that occurred two weeks before the credit
union robbery identified Wiggins as the perpetrator. Based in part on this hearsay
evidence, the judge sentenced Wiggins to the statutory maximum (a term still
within the guideline range), and said that if he could he would have sentenced
Wiggins to life imprisonment. The judge “promised” that if Wiggins were to violate
the law after his release from prison, the court would “come back even . . . in a
wheelchair” to resentence him. The agent’s testimony, however, did not implicate
Booker because the evidence concerning Wiggins’ uncharged crimes did not increase
the guideline range. What did affect the range was Wiggins’ status as a career
offender, but an increase in offense level premised on prior convictions does not
raise constitutional concerns. See Almendarez-Torres, 523 U.S. 224, 235 (1998)
(fact of a prior conviction is a sentencing factor that need not be proven to a jury
beyond a reasonable doubt); see also United States v. Shepard, 125 S.Ct. 1254, 1264
(2005) (Thomas, J. concurring) (pointing out that Court has not yet reconsidered
Almendarez-Torres); United States v. Ngo, 406 F.3d 839, 842 (7th Cir. 2005)
(explaining that Almendarez-Torres exception for prior convictions survives
Shepard). Wiggins could still argue that Booker is implicated given that the
district court applied the guidelines as mandatory, see United States v. White, 406
F.3d 827 (7th Cir. 2005); United States v. Castillo, 406 F.3d 806 (7th Cir. 2005), but
given the judge’s statements at sentencing, it would be frivolous to argue that this
claim could gain Wiggins any relief. See United States v. Lee, 399 F.3d 864, 867
(7th Cir. 2005); see also United States v. Paladino, 401 F.3d 471, 483 (7th Cir.
2005).
In his own submissions, Wiggins first argues that the government failed to
prove that the credit union was federally insured, an element of the offense. See
United States v. Harris, 914 F.2d 927, 933-34 (7th Cir. 1990); United States v.
Taylor, 728 F.2d 930, 933 (7th Cir. 1984). This argument would be frivolous
because at trial he stipulated that the credit union was insured by the National
Credit Union Administration Board. See 18 U.S.C. 2113(a), (g).
Wiggins also suggests challenging his career offender status on the ground
that the court relied on inappropriate sources to determine that he had two prior
controlled substance offenses. He relies on Shepard, which holds that sentencing
courts may refer only to official judicial records, such as charging documents and
plea agreements, but not police reports, to determine the nature of of a defendant’s
prior convictions. See Shepard 125 S.Ct. at 1263; see also United States v. McGee,
No. 01-2493, 2005 WL 1324815, at *18 (7th Cir. Jun. 3, 2005) (holding that Shepard
No. 04-1698 Page 4
applies with equal force to the career offender provision). Wiggins’ argument is
frivolous because his two prior convictions under Illinois law for manufacturing or
possessing controlled substances with the intent to deliver was all the information
the judge needed to know that Wiggins had the requisite priors for career offender
status. See United States v. Mueller, 112 F.3d 277, 281 (7th Cir. 1997) (holding
that conviction under a statute that prohibits the manufacture or distribution of a
controlled substance is a controlled substance offense).
Finally, Wiggins suggests that he could argue that he received ineffective
assistance of counsel. Although it appears highly unlikely that any of Wiggins’
complaints about his counsel’s performance could support a claim for ineffective
assistance, we would not review that claim on direct appeal since counsel also
represented Wiggins at trial. United States v. Martinez, 169 F.3d 1049, 1052 (7th
Cir. 1999). Wiggins can pursue an action under 28 U.S.C. § 2255 if he wishes to
challenge his counsel’s performance. Massaro v. United States, 538 U.S. 500, 509
(2003); Martinez, 169 F.3d at 1052.
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.