United States v. Collymore

309 F. App'x 44
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 5, 2009
DocketNo. 08-1130
StatusPublished

This text of 309 F. App'x 44 (United States v. Collymore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Collymore, 309 F. App'x 44 (7th Cir. 2009).

Opinion

ORDER

On the day his trial was scheduled to begin, Gerald Collymore pleaded guilty without the benefit of a plea agreement to one count of distributing a schedule II [46]*46controlled substance. See 21 U.S.C. § 841(a)(1). On Collymore’s request the district court held a bench trial to determine the type and weight of the controlled substance and concluded that Collymore had distributed approximately 62.1 grams of crack. At sentencing the court determined that, taking into account relevant conduct, Collymore was responsible for distributing between 500 grams and 1.5 kilograms of crack. This gave Collymore a base offense level of 34. The court increased the offense level by two points because Collymore had obstructed justice, see U.S.S.G. § 3C1.1, and determined that he was not eligible for a reduction for acceptance of responsibility, see id. at § 3E1.1, bringing Collymore’s offense level to 36. This offense level, along with Collymore’s criminal history of III, yielded a guidelines imprisonment range of 235 to 293 months. The court then considered the sentencing factors in 28 U.S.C. § 3553(a), and sentenced him to 180 months’ imprisonment, 55 months below the guidelines minimum. Collymore filed a notice of appeal, but his appointed counsel now seek to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they cannot discern a nonfrivolous basis for appeal. Collymore has not accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our review to the potential issues identified in counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Counsel first tells us that Collymore wishes to have his guilty plea set aside. Thus, counsel correctly addresses whether Collymore might argue that the district judge did not fully comply with Federal Rule of Criminal Procedure 11(b) before accepting the guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).

Collymore did not move to withdraw his guilty plea in the district court, and so our review would be for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008). To ensure that a guilty plea is voluntary, the district court is required to conduct a plea colloquy that substantially complies with the requirements of Rule 11 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 11(b)(1). Under the plain-error standard a defendant must show that an error or omission in the plea colloquy affected his substantial rights, meaning that, but for the error he would not have pleaded guilty. See Griffin, 521 F.3d at 730.

Although the colloquy in this case was extensive, the district judge neglected to explicitly tell Collymore that he had the right to plead not guilty and the right to counsel. See Fed.R.Crim.P. 11(b)(1)(B), (b)(1)(D). Neither omission, however, undermined Collymore’s ability to understand his rights or to enter a voluntary guilty plea. The very purpose of the colloquy was to allow Collymore to change his plea from not guilty to guilty, so he obviously knew that he had the option to plead not guilty. See Knox, 287 F.3d at 670; United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001). And Collymore must have known about his right to counsel because he had a lawyer with him during the colloquy. See Driver, 242 F.3d at 769; United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir.1988). Thus, we agree with counsel that these oversights in the plea colloquy do not constitute a nonfrivolous ground for appeal.

Counsel next question whether Collymore could challenge the district court’s denial of his motion to suppress state[47]*47ments that he gave to the police. As counsel correctly point out, however, when a defendant enters an unconditional guilty plea, he waives all non-jurisdictional errors that might have occurred prior to the plea. United States v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir.2001). And nothing in the record suggests that Collymore’s plea was anything other than unconditional.

Counsel next examine whether there is a nonfrivolous issue concerning Collymore’s sentence. The first potential sentencing challenge they address is the district court’s conclusion that Collymore distributed crack. We would review the district court’s drug-type finding for clear error. See United States v. Padilla, 520 F.3d 766, 769 (7th Cir.2008). At the bench trial, the government presented overwhelming evidence, including the testimony of lab analysts and police officers as well as Collymore’s own statements, that the substance at issue was crack. See id. at 771 (noting that drug type may be proved through “testimony from people familiar with the drug” including “veteran police officers and forensic chemists”). The only evidence Collymore presented was a confidential informant’s affidavit, signed after the bench trial concluded, attesting that the substance was not crack. But this testimony was directly refuted by the informant’s prior and later statements to the police, and therefore we would not quibble with the judge’s decision to credit the prosecution’s evidence instead.

Counsel also question whether Collymore could argue that the district court erred in determining his relevant conduct to involve between 500 grams and 1.5 kilograms of crack. We agree that this argument is a nonstarter because it is not clearly erroneous, see United States v. Singleton, 548 F.3d 589, 591 (7th Cir.2008), for a court to reasonably estimate the amount of drugs the defendant is responsible for, see United States v. Marty, 450 F.3d 687, 690 (7th Cir.2006).

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Ralph E. Lovett, Jr.
844 F.2d 487 (Seventh Circuit, 1988)
United States v. Richard E. Driver
242 F.3d 767 (Seventh Circuit, 2001)
United States v. Libia Elizalde-Adame
262 F.3d 637 (Seventh Circuit, 2001)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)
United States v. Tony M. Lister
432 F.3d 754 (Seventh Circuit, 2005)
United States v. Babette Davis
442 F.3d 1003 (Seventh Circuit, 2006)
United States v. Beverly A. Marty
450 F.3d 687 (Seventh Circuit, 2006)
United States v. John E. Boyle
484 F.3d 943 (Seventh Circuit, 2007)
United States v. Krasinski
545 F.3d 546 (Seventh Circuit, 2008)
United States v. Padilla
520 F.3d 766 (Seventh Circuit, 2008)
United States v. Liddell
543 F.3d 877 (Seventh Circuit, 2008)
United States v. Singleton
548 F.3d 589 (Seventh Circuit, 2008)
United States v. Dale
498 F.3d 604 (Seventh Circuit, 2007)
United States v. Griffin
521 F.3d 727 (Seventh Circuit, 2008)

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Bluebook (online)
309 F. App'x 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-collymore-ca7-2009.