United States v. Larry D. Knox

lily) gilding (though this is defendants was to these advice

lawyer’s con- Even if it were unreasonable.

indeed for a nation law to international

trary law domestic weapons, nuclear

possess it a crime and does make properly

could law international a violation of

“to correct property.” destroying government Allen, States Cir.1985);

(2d also United States see 29-30;

Maxwell, at Unit- 254 F.3d supra, Komisaruk, at supra,

ed States

497; Montgomery, United States be It would antiwar suppose that

especially bizarre disable the United have a

activists weapons when using nuclear nations, by such plagued

many other

activists, weapons. these possess

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, KNOX, Defendant-Appellant.

Larry D. 01-3099.

No. Appeals, Court Circuit.

Seventh 26, 2002. March

Submitted 29, 2002. April

Decided May 2002.*

Rehearing Denied

* grant rehearing. Judge RIPPLE voted

Jersey, 530 U.S. (2000), could be used to cut L.Ed.2d 435 believes that down the sentence. Counsel futile, an argument such would be Apprendi assessment. holds that accurate statutory that increase the maximum facts punishment must be established beyond fact a of the trier of satisfaction statutory doubt. But max reasonable distributing any amount of co for imum 21 caine is 240 months’ see imprisonment, 841(b)(1)(C), § Knox was con U.S.C. and counts, him on three so for victed months). (720 Al years maximum is 60 though agree the courts of do not appeals whether, Apprendi, of wake 5G1.2(d) compels judge § a U.S.S.G. still (submitted), of Office Michael C. Carr when neces to use consecutive sentences Benton, IL, for U.S. Atty., U.S. a sary to construct term within Guide (submitted), Forrest Knox Larry D. An range, compare line United AR, City, pro se. (4th Cir.2001) (en 514, 518-19 gle, 254 banc) (yes), with Vas EASTERBROOK, POSNER, Before (5th 211, 214 253 F.3d Cir. quez-Zamora, RIPPLE, Judges. Circuit 2001) (no), every appeals court believes of EASTERBROOK, Judge. Circuit if the sentences are lawful that consecutive impose them. judge district chooses three counts his on Following indictment Buckland, 277 See United States cocaine, 21 crack see U.S.C. peddling of (col Cir.2002) (en banc) 1173, 1184-86 841(a)(1), guilty. Larry pleaded § v. Brad lecting authority); United States a subtraction His reward was three-level (8th Cir.2001). 1107, 246 F.3d 1114 ford, responsibility. of See acceptance for to sentence with possible Knox it was For 3El.l(b). reduction § That U.S.S.G. without con range month in the 235-293 punish- off his sliced at least 84 months terms, district secutive (from 240 months his sentence ment: poses no option. Apprendi chose that months), while the 235-293 range a Talbott v. obstacle. conceivable been range would have without credit (7th Cir.2000). 866, Indiana, 226 F.3d Believing that his sen- months. 324-405 still, Knox have lower tence should been whether there Next counsel asks a notice of lawyer file instructed objection to the calcula is a non-frivolous appeal. 235-293 month produced tions that dominated: range. Two elements that he cannot Representing rele issue, Knox’s of cocaine included quantity identify any non-frivolous un addition and a two-level vant conduct under Anders v. filed a brief has Califor 2Dl.l(b)(l) possessing § for 1396, nia, 738, 18 der U.S.S.G. 87 S.Ct. that there is concludes (1967), firearm. Counsel seeking permis our L.Ed.2d sentence, and prospect upending that coun question One sion to withdraw. Findings of fact about agree. again New we Apprendi v. considers is whether sel relief, upset only justify be error could see United States — Johnson, Vonn, error, U.S. -, 1043, clear see United States 122 S.Ct. Cir.2000), (2002), 812-18 and L.Ed.2d 90 exacting that is an findings they these as were on the standard. See Johnson v. United —based judge’s per- decision to believe district two U.S. (1997); dealings Olano,

sons who testified about their United States v. impossible upset. with Knox—are all but U.S. Although

See Anderson Bessemer counsel tells us that he 575, 105 S.Ct. 84 L.Ed.2d 518 found no flaws the Rule 11 colloquy, he of these witnesses closely enough. One testified did look The district accompanied trips judge that she Knox on two to explicitly did not remind Knox of his buy transported drugs cocaine and then guilty, to not see Rule him; Knox, for the second witness testified that 11(c)(3) though already who — Knox gun had traded a for crack. Far pleaded guilty sought not to alter that providing grounds to plea, obviously reduce the sen- knew this—and to failed tence, suggest these facts that Knox re- inform Knox what happen could if he vio grams ceived a break. The 397 of crack lated the terms of supervised the release that judge the district found to be Knox’s that would follow his imprisonment, see 11(c)(1). represented just two Again it likely is that Knox (such transactions about which the first witness things knew that bad aas return to Although testified. the evidence at prison) lay sen- in if store he failed to abide tencing release, shows that Knox conducted a the terms of but counsel’s failure business, drug-distribution the full scope of to find and discuss these in shortcomings grams, which must have exceeded 500 his the guilty-plea procedure raises some range sentence was based on the for 150 to doubts about thoroughness with which grams. potential Other argu- lines of prepared this Anders brief. ment that counsel evaluates would be even Yet there is an ques antecedent weaker, because not raised at all in the tion: Does Knox want to withdraw his Indeed, district court. Knox and his law- plea, reduction, forfeit the go three-level to yer that, judge informed the with the ex- trial, and take the risk of a longer sen ception of the just issues we have men- tence? The likely longer sentence is to be tioned, they had problems with the because the range jump will to presentence conclusions of the report. 324-405 months if everything stays else That representation waived any other the- the same while Knox loses the reduction ories related to the sentence. See United for acceptance of responsibility, but also Scanga, testimony because the at may identify trial conduct, additional relevant which could go Let us now back to where a produce higher sentence without began. what prosecutorial seems to have claim of vindictiveness. See obligatory Smith, become an performance in ev Alabama v. brief,

ery Anders counsel first inquired What is whether possible more, it to challenge judge might jury ask the guilty plea on ground decide whether Knox distributed more did not comply crack; with grams Fed.R.Crim.P. 11. than 5 jury if the an Knox did not ask the district judge yes, swered maximum sentence would plea, leave to withdraw his only plain so jump years per to 40 count. 21 U.S.C. Knox received notice of counsel’s 841(b)(l)(B)(iii). lawyers are Appellate § withdraw, 51(b), see Circuit Rule desire to that could issues to raise obliged responses. These and has filed three clients; no failure it is boomerang on their length of his dissatisfaction with the evince enough alone. leave well advocacy to argue and a desire to that coun sentence sentencing at for not sel was ineffective to com are entitled Defendants objections presen- making additional ad representation. Good petent presenting and not evidence report tence every not raise non-frivolous do vocates witnesses. opposition prosecutor’s to the present duty is issue. Counsel’s legal An claim would be ineffective-assistance the client’s promote contentions those appeal; on direct premature may want litigant interest. Sometimes § options his under 28 U.S.C. 2255. pursue step, and injurious potentially take a Glover v. United liberty that lies because to do so at allow defendants courts balance calculation of rele Knox believes that the a case concludes trial. Thus before drug quanti vant conduct is limited consult with court counsel should district indictment, in the but view ties listed the ac to determine whether the client See Edwards is untenable. Cf. Roe plea. to withdraw the cused wants 511, 1475, 523 U.S. S.Ct. 470, 477-81, 120 Flores-Ortega, 528 U.S. (1998); L.Ed.2d 703 (2000). 1029, 145 But if a L.Ed.2d 985 S.Ct. Cir.2001). Bjorkman, 270 F.3d 482 to advance a express should a desire client any in of his three The closest comes argument appeal, on a desire to withdraw filings expressing to independent to make an be entitled would plea passage: is this “Counsel lawyer may appellate limit A decision. guilty tell me to Plead to ineffective for judg in those that his best arguments to counts, only Had Two labo three when He harm. good more than See ment would do consistently I ratory Reports, and Analysis Barnes, 745, 103 463 U.S. S.Ct. Jones lawyer’s Told frist [the Counsel 3308, Martinez 77 L.Ed.2d 987 Cf. (2) I Remember Two predecessor] 152, 120 Appeal, v. Court of story conflicts with to This sales e/s”. Lawyers 145 L.Ed.2d court, open in where what Knox said blindly that their clients should not assume guilty pleading that he was told the contention, no every legal benefit from will he did what to all three counts because hazard, in should particular matter A guilty. is alleges and thus indictment (or explore in an Anders present even that he committed defendant’s assertion submission) 11 argument a Rule unless poor is a judge’s presence peijury clients, consulting their they know after States v. anew. United reason to start risks, that advice about the providing (7th Cir.1999). Stewart, 198 F.3d 984 really to withdraw the the defendant wants Allison, 63, 74, Blackledge also Driver, guilty plea. See United (1977); 97 S.Ct. Nothing York, 423 62 n. v. New U.S. Menna (1975). Still, wants to suggests that Knox we have seen 96 S.Ct. we do not think to plea, plea so withdraw his withdraw Knox wants to unless counts, supplied gain has a sub to matters that counsel he has little all three (for to going much to lose appeal, of the tools standard assessment this count, frivolously de or if Knox did want to trial on even one available might be during resentenc- nying start over. him his reduction for ing, accep- indigent could cost sues and confidence of the in responsibility). Nothing any tance of of defendant that his case received the “advo- that he all filings Knox’s hints wants three cacy nonindigent which a defendant is able guilty pleas filings His do not vacated. to obtain” are assured. Id. at imply ignorant Here, that he was of his to 1396. counsel has failed to notice guilty or that details about su- the Rule 11 violations and so has not ad- pervised release entered into his decision vised this court of the in appealing worth plead guilty. lawyer As a result his brief, therefore, the matter. Counsel’s duty explore legal theories that us provides with no more assistance than in might put quest have been to use of that rejected the no-merit letter by the Su- goal. Anders, preme in Court Anders. See (“The 744-45, U.S. at 87 S.Ct. 1396 no- granted,

Counsel’s motion to withdraw is merit ... letter affords neither the client appointment Knox’s motions for of a dif- aid.”). nor the court denied, lawyer ferent are appeal and the dismissed as frivolous. dismissing appeal, my colleagues this excuse the omission of counsel because RIPPLE, Judge, dissenting. Circuit nothing suggests that Mr. Knox wants to join my I cannot colleagues’ decision guilty withdraw his plea, and a withdrawal accept the Anders brief submitted of the plea may put Mr. Knox in jeopardy counsel, permit counsel to withdraw and receiving higher sentence should he be appeal to dismiss the as frivolous. conclusion, convicted after a trial. This At early stage this of the proceedings, view, my premature at best. If counsel our task first is to determine whether we recognize did not the infirmities of the ought permit counsel to withdraw and colloquy, Rule 11 it apparent that he then dismiss the appeal as frivolous. In apprise also did not his client of these view, my this inadequate. Anders brief is matters and of the consequences raising of Despite counsel’s assurances that no Rule appeal. the error on After receiving such 11 during violation occurred plea collo- advice, determine, the defendant well quy, it is clear that the district court did given for the reasons by my colleagues, not advise Mr. Knox that he had the However, not to raise the matter. this guilty, required by as Rule ought court not express a view on the 11(c)(3), nor did inform him of the conse- advisability of raising the issue or on the quences violating the terms of his su- merits of the issue until we can be certain release, pervised required as by Rule defendant, that with the advice of 11(c)(1). counsel, has considered it. As has been court, One of the reasons that practice defense counsel of this we should order required to submit an Anders brief rath counsel for Mr. Knox to evaluate the Rule er than a mere “no-merit letter” is that an violations and to determine whether it Anders brief appellate assists the court in indeed would be frivolous to appeal the ready instance, its review “because of the references issue. For in United States v. record, Graves, legal Cir.1996), but also to the authorities as furnished counsel.” An after counsel had submitted an Anders California, 738, 745, ders v. citing 87 brief re that there had been no In this violations of Rule we ordered counsel way, the confidence of the court specific to consider two Rule issues— that the appeal raises no non-frivolous is- the district court’s failure to advise the City, Kay Barnes; City Mis of Kansas made at statement defendant Doug Weishar, individually souri; the basis hearing could be made plea capacity manager him, in his official as a and the of perjury prosecution of a Missouri, City City, of Kansas availability of for the of misrepresentation City, Missouri, the Kansas Police also for the offense. See credits good-time Rosilyn Allen, Robinson, Department; individu United States Cir.1996) ally capacity mo- and in her official as a counsel’s (granting City City, manager withdraw, for the of Kansas filed an after counsel tion to City, Missouri, Mis and the Kansas there had submitting Anders brief souri, Department; violation, Terrie appointing Police Rule 11 but been no individually Hagedorn, and in her of of wheth- address the issue counsel to new manager capacity for the proof in ficial proffer of government’s er the as sufficient); City, Missouri, City and the of Kansas guilty plea support Depart Missouri, Kansas Police Tuangmaneeratmun, 925 (after Zobrist, (5th Cir.1991) ment; Appellees. and Karl stating that the dis- an Anders brief filed No. 01-2006WM. in full accepted plea trict court Appeals, Court of requirements of conformity with the Eighth Circuit. counsel to address the court directed explain court’s failure the district 17, 2002. Submitted: Jan. release). supervised effects April Filed: 2002. short, ought to at a mea- proceed we adjudicating this case. We pace in sured action on this not take definitive

ought that coun- until we can be confident

appeal thoroughly the case

sel has evaluated careful determina- with his client a

made adequacy of to raise the

tion as whether

the Rule determination. DARBY, Appellant, C.

Susan BRATCH;

Floyd Kansas Missouri City Department; Kansas

Police Commissioners; Jo- of Police

Board Eckold; Mulvihill;

seph Dennis C. J. Daniels, Dr., Appellees, Stacey Defendant, Simon,

Jeffrey J.

Case Details

Case Name: United States v. Larry D. Knox

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 28, 2002

Citation: 287 F.3d 667

Docket Number: 01-3099

Court Abbreviation: 7th Cir.