United States v. Cox

59 F. App'x 144
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 18, 2003
DocketNo. 02-1640
StatusPublished

This text of 59 F. App'x 144 (United States v. Cox) 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. Cox, 59 F. App'x 144 (7th Cir. 2003).

Opinion

ORDER

Darryl Cox pleaded guilty to two counts of wire fraud, 18 U.S.C. § 1343, and was sentenced to consecutive terms of 55 months’ imprisonment, three years of supervised release, $999,709.45 in restitution,

and a $200 special assessment. Cox’s counsel filed a notice of appeal, but because she could not discern a non-frivolous issue for appeal she now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cox was notified of his counsel’s motion, see Cir. R. 51(b), and has filed a response. Counsel’s supporting Anders brief is facially adequate, so we confine our review to the potential issues raised in the brief and in Cox’s response. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). Because we conclude that the potential issues raised by counsel and by Cox are frivolous, we grant counsel’s motion to withdraw and dismiss the appeal.

In March 2000, a grand jury indicted Cox and four others on multiple counts of wire fraud, alleging an elaborate scheme to defraud Western Union between May 1996 and November 1999. Essentially, Cox would convince Western Union operators that he was a Western Union employee following up on wire transfers that never made it to various locations in the Chicago area, and he would either pick up the fraudulent transfers himself or send one of his co-defendants to do so. After negotiations failed to produce an agreement resolving the entire indictment, Cox pleaded guilty to Counts One and Three without a plea agreement. At sentencing the government linked him to approximately 900 fraudulent transfers. After sentencing the court dismissed the remaining counts on a motion by the government.

Counsel first considers whether Cox could argue that his pleas were not made knowingly and voluntarily. She represents that Cox wishes to withdraw his pleas and proceed to trial, a position Cox iterates in his Rule 51(b) response. The district court conducted a change-of-plea colloquy to ensure that Cox’s guilty pleas [146]*146were made knowingly and voluntarily and not the result of threat or coercion. See Fed.R.Crim.P. 11. The court explained the charges, the possible penalties, and the rights Cox would be giving up by pleading guilty. Cox acknowledged that he understood. The court also determined that the two counts were adequately supported by a factual basis, with which Cox agreed. Counsel recognizes that the court failed to inform Cox that he had the right to plead not guilty or that his answers under oath could be used against him in a perjury prosecution. Fed.R.Crim.P. 11(c)(3), (5). But because Cox did not object to these omissions in the district court, we would review a challenge for plain error. United States v. Vonn, 535 U.S. 55,122 S.Ct. 1043, 1046,152 L.Ed.2d 90 (2002).

Given the circumstances of Cox’s pleas, we agree with counsel that challenging them as unknowing or involuntary would be frivolous. Even though Cox now contends that he did not understand the law and disagrees with the factual basis, he represented under oath during the colloquy that he did understand the charges and concurred with the factual account. His representations at the hearing are presumed to be correct, United States v. Standiford, 148 F.3d 864, 869 (1998), and Cox offers nothing to rebut that presumption. Moreover, these two omissions under Rule 11 were harmless. Cox undoubtedly was aware that he could plead not guilty; he originally had pleaded not guilty as to all the counts and then changed his plea to guilty on only two of them. See United States v. Knox, 287 F.3d 667, 670 (7th Cir.2002). Amd not informing Cox that his statements under oath could be used in a perjury prosecution was harmless because there is no current or prospective prosecution. United States v. Graves, 98 F.3d 258, 259 (1996).

Counsel, though, has failed to discuss a more serious Rule 11 omission that occurred here: the district court did not admonish Cox concerning the effects of supervised release. Fed.R.Crim.P. 11(c)(1). During the colloquy the government twice articulated Cox’s potential penalties, including a maximum of three years of supervised release. And Cox twice represented that he understood the potential penalties. However, the court never explained the effects of supervised release. Ordinarily such an omission is harmless if the prison term imposed plus the amount of supervised release does not exceed the maximum imprisonment allowable by statute, so long as the defendant was made aware of that maximum. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002); United States v. Saenz, 969 F.2d 294, 297 (7th Cir.1992). But that was not the situation here. Cox was correctly informed that he faced at most ten years of imprisonment — five years for each count to which he pleaded guilty. He was sentenced to consecutive prison terms of 55 months and three years of supervised release — a combined amount well in excess of ten years.

But because Cox did not object to this omission either, our review would again be for plain error only. Vonn, 122 S.Ct. at 1046. To establish plain error Cox would have to show “not only that [he] would not have pleaded guilty in the absence of the district court’s error, but also some reason to believe that [he] should not be convicted.” United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Because there is no indication that the court’s oversight had any effect on Cox’s decision to plead guilty, and because there was overwhelming evidence of Cox’s guilt, we conclude that a challenge based on this omission would be frivolous.

[147]*147Counsel also considers whether Cox could challenge his prison sentences on appeal. She focuses primarily on three findings made by the district court: the amount of loss attributed to Cox; a four-level upward adjustment for his role as leader, U.S.S.G. § 3Bl.l(a); and not awarding a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1. Cox, in his response, also challenges the amount of loss and the finding of his role as leader; however, he offers no arguments for his contentions that they were incorrect. We would review all three factual determinations for clear error. Schuh, 289 F.3d at 972; United States v. Sierra, 188 F.3d 798, 803-04 (7th Cir. 1999).

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Robert Saenz
969 F.2d 294 (Seventh Circuit, 1992)
United States v. Dale E. Graves
98 F.3d 258 (Seventh Circuit, 1996)
United States v. Brian A. Standiford
148 F.3d 864 (Seventh Circuit, 1998)
United States v. Alex Sierra
188 F.3d 798 (Seventh Circuit, 1999)
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. David Vera
278 F.3d 672 (Seventh Circuit, 2002)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)

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Bluebook (online)
59 F. App'x 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cox-ca7-2003.