United States v. Buckner, Sirron , 215 F. App'x 530 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 February 1, 2007
Decided February 5, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Nos. 05-4250, 05-4552 & 05-4567
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Western District
of Wisconsin
v.
Nos. 05-CR-093-S-01
SIRRON BUCKNER, et al., 05-CR-092-S-01
Defendants-Appellants. 05-CR-094-S-01
John C. Shabaz,
Judge.
ORDER
Sirron Buckner and Senaca Bartlett pleaded guilty to knowingly and
intentionally possessing with intent to distribute more than 5 grams of crack
cocaine, see 21 U.S.C. § 841(a)(1), and Darriell Cross pleaded guilty to possession of
5 or more grams of crack cocaine, see 21 U.S.C. § 844(a). In these consolidated
appeals, appointed counsel for each appellant moves to withdraw under Anders v.
California, 386 U.S. 738 (1967), because they cannot discern any nonfrivolous bases
for the appeals. Each supporting brief is facially adequate, and none of the
appellants responded to our invitation under Circuit Rule 51(b) to comment on his
Nos. 05-4250, 05-4552 & 05-4567 Page 2
counsel’s submission.1 We thus review only the potential issues identified in each
counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
In June 2005 police in Madison, Wisconsin responded to a call from a hotel
manager, reporting an unusually high number of visitors and telephone calls to the
rooms being used by Buckner and Bartlett. The police officers knew from previous
encounters that Buckner was involved in trafficking controlled substances. At the
hotel, a dog sniff in the hallway just outside the two rooms indicated a positive
alert. The officers then watched the rooms and observed Buckner, Bartlett, and
Cross leave together in a car. A short time later, police conducted a traffic stop on
the car based on outstanding warrants for Bartlett. Cross attempted to flee the
vehicle and threw a package containing crack cocaine under the car before he was
caught by police. Police also found a small amount of marijuana in the car and
arrested all three men. Later, police found cocaine, crack cocaine, over $13,000 in
cash, a small amount of marijuana, a small amount of MDMA (Ecstasy), and a
firearm in the hotel rooms.
I. Sirron Buckner
Buckner’s PSR placed him in criminal history category V, but Buckner
objected at sentencing that a criminal history category of III better reflected the
relatively minor nature of his past convictions, such as traffic offenses for driving
without a license. Buckner’s other convictions were all misdemeanors, except for
one felony conviction for possession of a marijuana cigarette. The district court
rejected Buckner’s argument, set his criminal history category at V, and sentenced
him to 192 months’ imprisonment—the upper part of the 168-210 month guidelines
range.
Counsel identifies only one potential issue for appeal: whether Buckner could
argue that his sentence is unreasonable in light of the factors identified in 18 U.S.C.
§ 3553(a) because his criminal history consisted mainly of misdemeanor offenses.
Counsel considers whether Buckner could assert that a lower criminal history
category was more appropriate because his only prior felony conviction was for
possession of a small amount of marijuana.
Counsel correctly concludes that such an argument would be frivolous
because Buckner’s sentence was reasonable. First, Buckner’s sentence is presumed
reasonable because it falls within the properly calculated guidelines range. See
United States v. Gama-Gonzalez, No. 06-1965, 2006 U.S. App. LEXIS 29744 (7th
1
Buckner’s motion to file an out-of-time response to his attorney’s brief was
denied on January 11, 2007.
Nos. 05-4250, 05-4552 & 05-4567 Page 3
Cir. Dec. 5, 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Although the Supreme Court has recently granted a writ of certiorari to consider
whether according a presumption of reasonableness to a sentence within the
guidelines range is consistent with United States v. Booker, 543 U.S. 220 (2005), see
United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert.
granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006) (No. 06-5754), the resolution of that
question would not affect our conclusion that a challenge to Buckner’s sentence
would be frivolous. Here the district court adequately considered the § 3553(a)
factors before deciding that a sentence toward the top of the guidelines range was
appropriate. For instance, the court engaged in an extensive discussion of
Buckner’s history and characteristics, noting his “numerous” juvenile adjudications
that give “a flavor of a person’s character and a person’s ability to address the
standards which are expected of most of us.” The court then considered Buckner’s
multiple driving offenses, some of which involved driving while intoxicated or
carrying a weapon, leading the court to observe that Buckner was a “dangerous
person” to have on the streets and a “perennial violator of the law.” The court
acknowledged that Buckner came from a broken home, but did not accept Buckner’s
argument that these circumstances spurred him to commit the crimes that he did.
The court also observed that Buckner’s “criminal behavior appears to be increasing
substantially” and proposed that he “needs structure, . . . vocational programs and
substance abuse treatment . . . in a custodial setting to protect the community from
his continued criminal conduct.” The district court did not ignore any of Buckner’s
arguments for a lower sentence, see United States v. Cunningham, 429 F.3d 673,
676 (7th Cir. 2005). In sum, it would be frivolous to argue that the sentence was
unreasonable.
II. Senaca Bartlett
After determining that Bartlett qualified as a career offender, see U.S.S.G. §
4B1.1, the district court sentenced him to 210 months’ imprisonment and 5 years’
supervised release.
Counsel first considers whether Bartlett could argue that his guilty plea
must be set aside because the court did not comply with Federal Rule of Criminal
Procedure 11 during the plea colloquy. This issue is properly considered because, in
accordance with United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), counsel
has verified that Bartlett now wishes to withdraw his plea. Any Rule 11 challenge
would be reviewed for plain error because Bartlett did not move to withdraw his
plea in the district court. See United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006).
We agree that such a challenge would be frivolous. The court complied with
Rule 11, informing Bartlett of his right to plead not guilty and explaining the
Nos. 05-4250, 05-4552 & 05-4567 Page 4
charges, possible penalties, and the rights Bartlett would give up by pleading guilty.
The court also confirmed an adequate factual basis for the plea and ensured that
Bartlett was not pleading under perceived pressure or coercion from the
government.
Counsel also considers whether Bartlett could argue that he was improperly
sentenced as a career offender, see § 4B1.1(a), for having two adult felony drug
convictions. A defendant qualifies as a career offender if, among other things, he
has “at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” Id; United States v. Dyer, 464 F.3d 741, 742-43 (7th Cir. 2006).
At sentencing, Bartlett argued that he should be sentenced below the applicable
guidelines range because his two prior convictions involved only “small amounts of
cocaine,” resulting in short periods of imprisonment.
The district court correctly determined that Bartlett’s two prior drug
convictions qualified him to be sentenced as a career offender. He had twice
previously been convicted in Wisconsin state court of possession with intent to
distribute cocaine, a controlled substance offense which counts as a felony for the
purposes of the guidelines. See Bethel v. United States, 458 F.3d 711, 713 (7th Cir.
2006). Therefore, it would be frivolous to argue that § 4B1.1 was erroneously
applied.
III. Darriell Cross
At sentencing Cross objected to the PSR’s recommendation of an advisory
guidelines range of 151 to 188 months on three bases: he argued that (1) his
criminal history category of VI substantially over-represented the seriousness of his
criminal history because it included offenses that occurred nine to ten years ago,
when he was only 18 or 19 years old, see U.S.S.G. § 4A1.3; (2) he should receive a
lower sentence pursuant to § 5K2.0 because he possessed the crack for only a brief
period of time; and (3) the disparity in the sentencing guidelines between penalties
for possession of cocaine base and powder cocaine is unjustified. The court
considered and rejected these arguments and sentenced Cross to 170 months’
imprisonment and three years’ supervised release.
Counsel generally considers whether Cross could challenge the court’s
rejection of his objections at sentencing. Any such challenge, however, would be
frivolous. As to the criminal history assessment, the application notes to the
guidelines counsel that a lower sentence may be warranted “if, for example, the
defendant had two minor misdemeanor convictions close to ten years prior to the
instant offense and no other evidence of prior criminal behavior in the intervening
period.” U.S.S.G. § 4A1.3 n.3. But Cross’s criminal history computation included
two offenses he committed in 2004, when he was 26 and 27 years old, as well as two
Nos. 05-4250, 05-4552 & 05-4567 Page 5
felony convictions in 1995 and one in 1996. As to the request for a sentence
adjustment, § 5K2.0 is intended to account for variations in circumstances “of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines,” see 5K2.0(a)(1), and this case does not
present the type of “exceptional circumstance” that calls for a lowered sentence. See
United States v. Cooper, 461 F.3d 850, 855 (7th Cir. 2006) (noting that concept of
“departures” has been rendered obsolete post-Booker, and review is now for
reasonableness). As to the crack vs. powder cocaine objection, we have consistently
upheld the 100:1 ratio established by Congress and cannot substitute a different
ratio for the one that Congress has selected. See, e.g., United States v. Jointer, 457
F.3d 682, 686 (7th Cir. 2006).
Counsel next considers whether Cross could argue that his sentence, within
the correctly calculated guidelines range, was unreasonable. As discussed above, a
sentence within the guidelines range is presumed reasonable, see Gama-Gonzalez,
2006 U.S. App. LEXIS 29744; Mykytiuk, 415 F.3d at 608. But even without the
presumption, we agree that any challenge to Cross’s sentence would be frivolous.
Here, the court adequately applied the § 3553(a) factors, noting, with respect to the
offense of conviction, that Cross handled “a large amount of crack cocaine.” With
respect to his history and characteristics, the court added that he had not been
deterred by other criminal sentences in the past, that he probably would not be
deterred by a lighter sentence this time, and that he was “as close to a career
offender criminal as you could be without the designation.” With respect to
sentencing goals, see § 3553(a)(2), the court considered the need to protect the
public, as well as the possibility that Cross would receive needed mental health
treatment while incarcerated. The court concluded that a sentence in the middle of
the guidelines range “promotes general and specific deterrence, holds the defendant
accountable for his illegal conduct, and accomplishes the statutory purposes of
sentencing.”
Counsel next considers whether Cross could argue on appeal that the district
court should have granted him a lower sentence based on his role as a minimal or
minor participant in the offense. See U.S.S.G. § 3B1.2; United States v. Mendoza,
457 F.3d 726, 729 (7th Cir. 2006); United States v. Hunte, 196 F.3d 687, 693-94 (7th
Cir. 1999). But counsel correctly notes that this argument is waived if not raised
during sentencing, and Cross did not request a sentence adjustment based on §
3B1.2 before the district court. See United States v. Carrillo, 269 F.3d 761, 770 (7th
Cir. 2001); United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000).
Finally, counsel considers whether Cross could challenge his sentence on the
ground that he received ineffective assistance of counsel. But as we have repeatedly
noted, a claim of ineffective assistance of counsel is better suited for collateral
Nos. 05-4250, 05-4552 & 05-4567 Page 6
review. See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v.
Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, counsels’ motions to withdraw are GRANTED and the appeals
are DISMISSED.