United States v. Collins, Shaun , 230 F. App'x 578 ( 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NONPRECEDENTIAL DISPOSITION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 March 8, 2007
Decided March 14, 2007
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-3491
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 06-CR-074-S-01
SHAUN COLLINS,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Shaun Collins pleaded guilty in a written agreement to distributing
methamphetamine. See 21 U.S.C. § 841(a)(1). The presentence investigation report,
to which Collins did not object, ultimately concluded that his relevant conduct
involved 138.13 grams of methamphetamine based on both the amount involved in
the charged transaction and amounts from prior and subsequent drug deals he
committed between January 2003 and the summer of 2005. The district court
accepted this finding and accordingly determined that Collins’s guidelines
imprisonment range was 46 to 57 months. The court then sentenced Collins to 52
months in prison and three years of supervised release.
No. 06-3491 Page 2
Collins appealed his sentence, but his appointed lawyer now moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot
discern a nonfrivolous argument for appeal. We invited Collins to respond, see Cir.
Rule 51(b), and he has done so. Because counsel’s brief is facially adequate, we will
consider only those potential issues mentioned in the brief and Collins’s response.
See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers whether Collins could challenge his guilty plea on the
ground that it was not taken in compliance with Federal Rule of Criminal
Procedure 11. But counsel does not say that Collins wants his plea set aside, and
Collins’s response is ambiguous on this issue. We have held that counsel generally
should not raise a Rule 11 argument on appeal or even explore the question via an
Anders submission, unless the defendant wants his plea set aside. See United States
v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). In any case we have reviewed the
transcript and conclude that the district court substantially complied with Rule 11,
see United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002), so any potential
argument about the voluntariness of Collins’s plea would be frivolous.
Counsel next considers whether Collins could challenge his sentence either
because it is contrary to United States v. Booker, 543 U.S. 220 (2005), or because it
is unreasonable. We agree that both of these potential challenges would be
frivolous. The district court expressly stated at sentencing that it was treating the
guidelines as advisory, and a sentence within the guidelines range such as Collins
received is presumed reasonable. See United States v. Mykytiuk, 415 F.3d 606, 607-
08 (7th Cir. 2005). Even if we did not apply the presumption, 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), any challenge to the reasonableness of
Collins’s sentence would still be frivolous. The district court considered the factors
under 18 U.S.C. § 3553(a), and determined that a 52-month sentence was
appropriate given the several drug deals Collins had engaged in between 2003 and
2005 and his history of substance and alcohol abuse.
Collins identifies a few other potential issues in his response. He suggests
that he could challenge the district court’s decision to include as relevant conduct
138.13 grams of methamphetamine, considerably more than he was convicted of
distributing. But the plea agreement that Collins signed stated that “[t]he United
States and the defendant also agree to jointly recommend to the probation office
and the sentencing judge, based on the presently available evidence, that the Court,
when computing the advisory guidelines, should find that the defendant’s total
relevant conduct involved at least 50 grams but less than 200 grams of
methamphetamine.” Therefore, he waived this argument because he admitted in his
plea agreement that he should be held responsible for at least 50 but less than 200
grams of methamphetamine. See United States v. Berheide, 421 F.3d 538, 542 (7th
Cir. 2005); United States v. Newman, 148 F.3d 871, 877–78 (7th Cir. 1998). He also
No. 06-3491 Page 3
suggests that he could challenge his sentence under Apprendi v. New Jersey, 530
U.S. 466 (2000), but any such challenge would be frivolous because Collins’s
sentence does not exceed the 20-year statutory maximum for distributing any
amount of methamphetamine. See 21 U.S.C. § 841(b)(1)(c); United States v.
Bequette, 309 F.3d 448, 450 n.1 (7th Cir. 2002). Finally he considers whether he
could argue that he received ineffective assistance of counsel when negotiating his
plea agreement because the agreement leaves open the particular sentence he will
receive. But his plea agreement did not bind the court to impose a particular
sentence. See Fed. R. Crim. P. 11(c)(1)(B); United States v. Mankiewicz, 122 F.3d
399, 403 n.1 (7th Cir. 1997) (construing U.S.S.G. § 6B1.4(d)). In any case, potential
arguments concerning ineffective assistance of counsel are better raised in
collateral proceedings under 28 U.S.C. § 2255 where the record can be further
developed. See, e.g., United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
For the above reasons, we GRANT counsel’s motion and DISMISS the appeal.