United States v. Beason

493 F. App'x 747
Court of Appeals for the Seventh Circuit·Decided July 23, 2012·No. No. 11-3166·Published·Cited by 5 cases

Opinion

[748] ORDER

Deandre Beason is one of nearly thirty defendants indicted together after authorities investigated a drug ring that had operated in Milwaukee, Wisconsin, for almost a decade. But Beason, a felon, was charged only with possessing a handgun that was found in his bed during execution of a search warrant, 18 U.S.C. § 922(g)(1), and he pleaded guilty to that crime. The district court determined that Beason is an Armed Career Criminal and sentenced him to the 15-year statutory minimum. See id. § 924(e). Beason filed a notice of appeal, but his appointed lawyer cannot identify a nonfi’ivolous issue to pursue and has moved to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Beason has not responded to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Apparently Beason wants his guilty plea set aside, and thus counsel first evaluates whether Beason could challenge the voluntariness of his plea or the adequacy of the plea colloquy. Cfi United States v. Konczak, 683 F.3d 348-50, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Beason did not move in the district court to withdraw this guilty plea, so our review would be limited to a search for plain error. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2007). During the plea colloquy the district court failed to apprise Beason that his answers given under oath could be used later in a prosecution for perjury; the court also neglected to admonish Beason that he could not be compelled to incriminate himself but could plead not guilty, confront the prosecution’s witnesses, compel the attendance of witnesses, present evidence, and testify. See Fed.R.Crim.P. 11(b)(1)(A), (B), (E). We agree with counsel, however, that the omissions were harmless because Beason executed a written plea agreement acknowledging these rights and the other trial rights he waived by pleading guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 85, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001).

Counsel next considers whether Beason could challenge the use of his two Wisconsin convictions for possessing cocaine with intent to distribute and a juvenile adjudication for armed robbery as predicates for sentencing as an armed career criminal. At sentencing Beason argued that one of the drug crimes (involving less than a gram of crack cocaine) did not qualify as a “serious drug offense” under the Armed Career Criminal Act, see 18 U.S.C. § 924(e)(2)(A)(i), because the maximum penalty he faced was ten years in prison, not more, see Wis. Stat. §§ 961.41(l)(cm)(lg), 939.50(3)(g). The district court rejected this argument because a “serious drug offense” is one punishable by “ten years or more,” 18 U.S.C. § 924(e)(2)(A)(i), and we agree with counsel that it would be frivolous to raise that argument again on appeal, see United States v. Rodriquez, 553 U.S. 377, 380-81, 393, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008) (affirming application of ACCA to defendant with predicate drug convictions with ten-year maximum terms of imprisonment).

Beason also objected that this same drug conviction should not count as an ACCA predicate because, in his view, the drug possession was “relevant conduct” to his § 922(g)(1) offense. Beason explained that the crack he was convicted of possessing had been sold to him by Regale Morton, one of his codefendants in this prose-[749] ration. Yet Beason also conceded that he had possessed the gun for protection after a gambling dispute, and not because of events relating to the drug conspiracy-charged in the indictment. On that basis the district court concluded that Beason’s drug conviction was not relevant conduct, and counsel surmises that challenging the court’s determination would be frivolous. We agree with counsel’s conclusion, but not with his assumption that a factual connection between the drug crime and his gun violation would matter. The ACCA requires that predicate offenses be “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1), United States v. Sims, 683 F.3d 815, 816-17 (7th Cir.2012), but the statute does not mandate that predicates be factually unrelated to the offense of conviction. A prior crime that is “relevant conduct” to the offense of conviction cannot be counted in applying the career offender guideline, see U.S.S.G. §§ 4B1.2(c)(2), 4A1.2 cmt. n. 1; United States v. Liddell, 492 F.3d 920, 922 (7th Cir.2007); United States v. Garecht, 183 F.3d 671, 673-74 (7th Cir.1999), but the ACCA has no similar restriction.

Counsel last questions whether Beason could challenge his sentencing as an armed career criminal by arguing that his juvenile adjudication for armed robbery is not a conviction for a “violent felony.” The probation officer reported that Beason had committed this act of delinquency with two accomplices, and that one of the other juveniles brandished a gun during the crime. Beason did not object at sentencing to the use of this juvenile offense, and counsel reasons that a Wisconsin juvenile adjudication for “armed” robbery is categorically a violent felony and thus any appellate claim would be frivolous.

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United States v. Beason, 493 F. App'x 747 (7th Cir. 2012).

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