UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. CRAWFORD, Defendant-Appellant.
No. 15-2398
United States Court of Appeals, Seventh Circuit.
Submitted October 27, 2016. Decided October 28, 2016
837 F.3d 539
Antonio D. Crawford, Pro Se
Before WILLIAM J. BAUER, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge
ORDER
Antonio Crawford, an Illinois prisoner, mailed to the federal courthouse in Portland, Maine, several letters vowing that federal judges and prosecutors in that district would “pay” just as he had “paid all my money to see most of yall dead.” He also wrote that he would rape the assistant United States attorney allegedly responsible for prosecuting his “brother.” Crawford was charged with mailing threatening communications in violation of
Crawford filed a notice of appeal, but his newly appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Crawford opposes counsel‘s motion. See CIR. R. 51(b). Counsel has submitted a brief that explains the nature of the case and addresses issues that an appeal of this kind might be expected to involve. We limit our review to the subjects counsel discusses, plus the additional issues that Crawford presents in his response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Although appellate counsel does not say that he asked Crawford if he wants to challenge his guilty plea, the lawyer nevertheless discusses in his Anders brief whether Crawford could challenge the plea
During the plea colloquy the district court informed Crawford that he could stand on his plea of not guilty and proceed to a jury trial, at which he would have the right to an attorney and the rights to confront and cross-examine adverse witnesses, to call his own witnesses, and to testify or not at his option. See
But there was one wrinkle in the plea colloquy, though not significant enough to present a nonfrivolous claim for appeal. Crawford mailed his letters in 2012 and pleaded guilty before the Supreme Court decided in Elonis that the parallel statute criminalizing threats sent through a means of interstate or foreign commerce, see
That potential challenge to the plea colloquy would be frivolous, however, because Elonis was decided before Crawford‘s sentencing and was flagged by the prosecutor during that proceeding. Yet Crawford did not move to withdraw his guilty plea, and thus we would review the plea colloquy only for plain error. United States v. Vonn, 535 U.S. 55, 63, 122 S.Ct. 1043, 152 L.Ed.2d 90, (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir. 2007). Crawford would need to “show a reasonable probability that, but for the error, he would not have entered the plea” and convince us that, in light of the entire record, “the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (quot
Apart from the Rule 11 colloquy, appellate counsel also considers whether Crawford might argue that the district court should have granted his motion to dismiss the indictment. That pro se motion asserts that Crawford‘s letters contain political speech that, even if threatening, is protected by the First Amendment. Yet true threats are never protected speech. Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); United States v. White, 610 F.3d 956, 960 (7th Cir. 2010). And even if Crawford meant to suggest—notwithstanding his admissions to investigators—that these statements are not threats, that factual defense was waived by Crawford‘s guilty plea. By pleading guilty, Crawford admitted the essential elements of the
Counsel next contemplates basing an appeal on objections that Crawford raised to the district court‘s application of the sentencing guidelines. For one, Crawford argued that his crime was victimless because no judge or prosecutor in Maine personally received his threatening letters. On that ground he opposed an upward adjustment under
Crawford‘s second objection at sentencing was to receiving criminal-history points for both state and federal convictions aris
Crawford‘s final sentencing objection concerned the addition under
Crawford raises additional points in his Rule 51(b) response. He first contends that the district court erred in waiting a year before ordering a competence evaluation. Crawford‘s trial attorney did not move for an evaluation until November 2013, seven months after the defendant‘s initial appearance. The court promptly ordered an evaluation, which the examining psychologist completed in March 2014. But a competence evaluation serves only to determine if the defendant is competent to stand trial, see
Finally, Crawford insists that the district judge should have recused himself after receiving a threatening letter from Crawford. But recusal is not required if a defendant has made a threat for the very purpose of forcing a recusal, see In re Nettles, 394 F.3d 1001, 1002-03 (7th Cir. 2005), and the sentencing transcript suggests that this was Crawford‘s aim. See also In re Basciano, 542 F.3d 950, 957 (2d Cir. 2008); United States v. Holland, 519 F.3d 909, 910-11 (9th Cir. 2008); United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994). Crawford asked the judge if he had received the threatening letter and then said that remaining impartial after being threatened would be difficult for anyone. This was an obvious effort to manipulate a recusal, and it would be frivolous for Crawford to claim that the judge erred in refusing to step aside.