United States v. Shaundale Johnson ( 2018 )

NONPRECEDENTIAL DISPOSITION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 November 2, 2018
Decided November 6, 2018
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1326
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 17-CR-40031-JPG-1
SHAUNDALE J. JOHNSON, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
Shaundale J. Johnson pleaded guilty to two counts of distributing
methamphetamine, 21 U.S.C. § 841(a)(1), and the district judge sentenced him to 204
months’ imprisonment on each count, to run concurrently. Johnson filed a timely notice
of appeal, but his attorney asserts that the appeal is frivolous and seeks to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Johnson did not respond directly to the
arguments in counsel’s submission, see CIR. R. 51(b), but instead filed a motion for the
court to appoint a new attorney. Counsel’s brief explains the nature of the case and
addresses the issues that an appeal of this kind might be expected to involve. Because
counsel’s analysis appears thorough, we limit our review to the subjects she discusses.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 18-1326 Page 2
Having verified that Johnson wishes to withdraw his guilty plea, counsel first
considers whether Johnson could challenge his plea because the district judge did not
wholly comply with Federal Rule of Criminal Procedure 11 in conducting the colloquy.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Johnson did not move to
withdraw his guilty plea in the district court, so we would review the adequacy of the
plea hearing for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). Counsel
points out two omissions in the plea colloquy, but properly concludes that both are
harmless. First, the district judge failed to specifically inform Johnson that by pleading
guilty, he was waiving his right to a jury trial. See FED. R. CRIM. P. 11(b)(1)(F). Although
the district judge should have explicitly mentioned waiver, we are satisfied that the
omission did not affect Johnson’s substantial rights. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Johnson asked for a change of plea hearing. During the
plea colloquy, the judge listed all of Johnson’s constitutional rights—including the right
to a jury trial—and then confirmed that Johnson understood these rights and still
wished to plead guilty. Based on the entirety of the record, there is no reasonable
probability that failure to specifically advise Johnson of the waiver could lead to a
different result. See id. Second, the district judge did not address forfeiture, restitution,
or the potential removal of a convicted non-citizen, see FED. R. CRIM. P. 11(b)(1)(J), (K),
(O), but none of these issues applies in Johnson’s case.
Next, counsel considers whether Johnson could challenge his sentence as
substantively unreasonable but correctly determines that an appellate attack would be
pointless. Johnson’s 204-month sentence is within the properly calculated guidelines
range, so we are permitted to presume it to be reasonable, and we do so here. See Rita v.
United States, 551 U.S. 338, 347–51 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Based on our review of the record, we are persuaded that the judge did not
abuse his discretion in weighing the 18 U.S.C. § 3553(a) factors to arrive at the ultimate
sentence. He noted Johnson’s history and characteristics (Johnson is “an addict” who
“didn’t have the best upbringing and … didn’t have a lot of guidance early on”) and the
need to promote respect for the law and provide just punishment (Johnson “can’t seem
to stay out of trouble,” despite getting a “tremendous break” in a previous federal drug
case; he “got out [of prison] and immediately basically got back into the [drug]
business”). The judge identified the need to protect the public from future crimes as a
“major factor” in determining an appropriate sentence and noted that his “initial
reaction” to Johnson’s presentence investigation report was that he was “a candidate for
the high end of [the] guidelines.” The judge further noted that after Johnson had
promised a prior sentencing judge that he would stay away from drugs, he nonetheless
started drug dealing shortly after being released from prison and while on supervised
No. 18-1326 Page 3
release. After telling Johnson that he still has “a lot of life ahead” if he could “turn it
around,” the judge imposed a mid-range sentence.
Johnson has moved to have a new attorney appointed so that he can pursue an
ineffective-assistance claim against his appellate counsel. Any ineffective-assistance
claim, however, is best presented to the district court in a petition for collateral review,
see 28 U.S.C. § 2255(a), so that a more thorough record can be developed. See Massaro v.
United States, 538 U.S. 500, 504–05 (2003); United States v. Smith, 771 F.3d 1045, 1047
(7th Cir. 2014).
For these reasons, we GRANT counsel’s motion to withdraw, DISMISS the
appeal, and DENY Johnson’s motion to have new counsel appointed.