United States v. Anthonette Strowder ( 2020 )


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  •                         NONPRECEDENTIAL DISPOSITION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 April 30, 2020
    Decided May 1, 2020
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    AMY J. ST. EVE, Circuit Judge
    No. 19-1535
    UNITED STATES OF AMERICA,                         Appeal from the United States District
    Plaintiff-Appellee,                          Court for the Southern District of Illinois.
    v.                                          No. 17-CR-30120-NJR-01
    ANTHONETTE STROWDER,                              Nancy J. Rosenstengel,
    Defendant-Appellant.                          Chief Judge.
    ORDER
    Anthonette Strowder pleaded guilty to several drug-possession and distribution
    charges, see 
    21 U.S.C. § 841
    (a)(1), and the district court declined to release her on bond
    before sentencing. Almost immediately afterward, she sought to withdraw the plea. The
    court denied her motion, stating that Strowder had “reacted impulsively” when she
    learned she would be detained, and later sentenced her to 240 months’ imprisonment.
    Strowder appeals, but counsel asserts that the appeal is frivolous and moves to
    withdraw under Anders v. California, 
    386 U.S. 738
     (1967). Strowder opposes counsel’s
    motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses
    potential issues that an appeal of this kind might involve. Because the analysis appears
    thorough, we limit our review to the subjects that counsel discusses and those in
    No. 19-1535                                                                          Page 2
    Strowder’s response. See United States v. Bey, 
    748 F.3d 774
    , 776 (7th Cir. 2014). We grant
    the motion and dismiss the appeal.
    Having confirmed that Strowder wishes to contest her guilty plea, see United
    States v. Konczak, 
    683 F.3d 348
    , 349 (7th Cir. 2012), counsel first considers whether she
    could raise a nonfrivolous challenge to the validity of the plea colloquy, and correctly
    concludes that she could not. A transcript of the plea colloquy reflects that the district
    court substantially complied with Federal Rule of Civil Procedure 11. See Konczak,
    683 F.3d at 349. The court satisfied itself that Strowder was competent, that she
    understood the charges against her, and that she was pleading guilty of her own free
    will. The government provided a factual basis for the charges, and Strowder admitted
    that the government could prove the facts as stated.
    Counsel relatedly represents that Strowder wishes to argue that she should be
    allowed to have her guilty plea set aside for reasons that she had not presented to the
    district court—that the district court and others coerced her plea, and that she was
    actually innocent of the charges. To the extent that counsel proposes to raise additional
    arguments not included in Strowder’s motion to withdraw her guilty plea, our review
    of the plea colloquy and the voluntariness of the plea would be for plain error. United
    States v. Vonn, 
    535 U.S. 55
    , 62–63 (2002); United States v. Dyer, 
    892 F.3d 910
    , 913–14
    (7th Cir. 2018).
    We agree with counsel that such a challenge would be frivolous. A “defendant
    does not have an absolute right to withdraw a plea before sentencing, although the
    court may allow him to do so if he has a fair and just reason for doing so.” United States
    v. Chavers, 
    515 F.3d 722
    , 724 (7th Cir. 2008). As for coercion, counsel points to a
    statement by the prosecutor to the judge at sentencing over a “look[]” he had received
    from the previous judge (since retired)—who, Strowder presumably believes, meant to
    encourage the government to offer a favorable plea deal to benefit the court. But
    however the government may have interpreted the “look,” this ambiguous statement
    would be insufficient under plain-error review to reflect any impropriety on the court’s
    part in the plea discussions. See FED. R. CRIM. P. 11(c)(1); see also United States v.
    O’Malley, 
    739 F.3d 1001
    , 1007–09 (7th Cir. 2014). Strowder also suggests that her family
    and lawyer coerced her plea, but there is no evidence of this—let alone evidence of her
    innocence—in the record. See United States v. Chavers, 
    515 F.3d 722
    , 725 (7th Cir. 2008).
    Counsel next concludes correctly that Strowder could not plausibly challenge her
    below-guidelines sentence. Her sentence of 240 months’ imprisonment (against a
    guidelines range of 360 months to life) did not exceed the statutory maximum penalties.
    No. 19-1535                                                                           Page 3
    See 
    21 U.S.C. § 841
    (b)(1)(B)(viii), (C). As for the guidelines calculations, counsel asks
    whether Strowder could challenge the denial of acceptance of responsibility, but
    counsel rightly reasons that Strowder cannot have it both ways when she now argues
    that she is innocent. See United States v. Lopinski, 
    240 F.3d 574
    , 575–76 (7th Cir. 2001). The
    court addressed her primary mitigating arguments concerning her age and medical
    condition. See United States v. Castaldi, 
    743 F.3d 589
    , 595–96 (7th Cir. 2014). And the court
    adequately considered the 
    18 U.S.C. § 3553
    (a) sentencing factors, focusing on her
    extensive criminal history, the harm her drug sales caused the community, and her
    continued sales even while on bond.
    Counsel also correctly concludes that any challenges to her terms of supervised
    release would be frivolous. The district court imposed a within-guidelines term of five
    years of supervised release for the drug possession count and three years for the
    remaining counts. And Strowder waived any challenges to the conditions when she
    declined the court’s invitation to object to them, after already having reviewed them
    with her attorney before the hearing. See United States v. Anderson, 
    948 F.3d 910
    , 911–12
    (7th Cir. 2020).
    Counsel finally considers whether Strowder could raise a nonfrivolous challenge
    to the court’s reliance on the Special Sessions Act, 
    28 U.S.C. § 141
    (b)(1), to hold her
    sentencing hearing in the Western District of Tennessee rather than in the Southern
    District of Illinois. Owing to her physical size (Strowder was 5’1” tall and weighed 570
    pounds at sentencing) and her underlying medical conditions, the Western Tennessee
    Detention Facility was the nearest facility that could accommodate her. Recognizing the
    logistical difficulties in transporting Strowder to the Southern District, the court found
    that there was no reasonably available location within the district to accommodate her
    special circumstances. So the district judge traveled to the facility in Tennessee to hold
    her sentencing hearing, with a live video feed back to the courtroom in the Southern
    District. Considering these detailed findings and the agreement between the
    government and defense counsel with regard to that arrangement, we agree with
    counsel that Strowder could not raise a nonfrivolous argument concerning the Act.
    Strowder raises two additional arguments but neither would be appropriate.
    First, she asserts that her previous counsel was ineffective, but this claim is better
    addressed in a collateral proceeding so that a more complete record could be
    developed. See Massaro v. United States, 
    538 U.S. 500
    , 504–05 (2003). Strowder also
    proposes challenging her sentence under the First Step Act on grounds that it bars
    No. 19-1535                                                                             Page 4
    enhancements for certain prior convictions, see 
    21 U.S.C. § 851
    , but that challenge would
    be irrelevant because Strowder received no such enhancements.
    Strowder recently filed two motions with this court seeking compassionate
    release. But this relief cannot be granted by this court as an initial matter. She must
    present the request first to the Bureau of Prisons and then to the district court. See 
    18 U.S.C. § 3582
    (c)(1)(A)(i); see also 
    28 C.F.R. § 571.61
    .
    And to the extent Strowder seeks through either motion credit for any prior
    custody, she must similarly present the request first through administrative avenues
    and then to the district court. See United States v. Wilson, 
    503 U.S. 329
    , 335 (1992); see also
    United States v. Walker, 
    917 F.3d 989
    , 993–94 (7th Cir. 2019).
    We GRANT counsel’s motion to withdraw and DISMISS the appeal.