United States v. Warren

86 F. App'x 974
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 22, 2004
DocketNo. 02-4351
StatusPublished

This text of 86 F. App'x 974 (United States v. Warren) 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. Warren, 86 F. App'x 974 (7th Cir. 2004).

Opinion

ORDER

In September 2002 Samuel Warren pleaded guilty to unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). Prior to sentencing he moved pro se to withdraw his plea, arguing that his counsel had provided ineffective assistance. He was appointed a new attorney, who argued in support of his motion. The court denied the motion and sentenced Warren to 105 months of imprisonment and 3 years of supervised release. Warren filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to find a nonfrivolous issue for appeal. Warren responded to counsel’s motion under Circuit Rule 51(b). Because counsel’s Anders brief is facially adequate, we limit our review of the record to those potential issues identified in counsel’s brief and in Warren’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). We agree with counsel that an appeal on the potential issues would be frivolous and therefore grant the motion to withdraw and dismiss Warren’s appeal.

In August 2001 Chicago police officers saw Warren and several other men standing around a park bench in Herbert Park. As the officers approached the men, Warren touched his waistband, turned, and fled to an apartment complex. While he was running, Warren pulled a gun out of his waistband and threw it. The officers found and arrested him in the apartment complex. They later retrieved the gun.

Warren pleaded guilty without a plea agreement. At his plea hearing, he initially equivocated when the judge asked him whether the government’s factual presentation was accurate. But when the court refused to accept a guilty plea without an agreement to the factual basis, Warren’s attorney spoke with him privately, and Warren then admitted to the factual basis for the crime and pleaded guilty.

Before sentencing, Warren filed his pro se motion to withdraw his guilty plea. In it he argued primarily that his counsel had provided ineffective assistance by failing to gather or review materials that Warren thought would prove exculpatory and by coercing him to plead guilty. In his motion Warren also vaguely referred to, but [976]*976never identified, pretrial motions that he thought his counsel should have filed. Concerned about a conflict of interest, Warren’s attorney withdrew from the case, and new counsel was appointed. The court held a hearing on the motion to withdraw. Warren’s new counsel declined to press the ineffective assistance argument but instead argued that the court should allow Warren to withdraw his plea based on an inadequate factual foundation. Warren also addressed the court. He reasserted that his attorney had coerced his plea by telling him that if he refused to admit to the factual basis the court would reject his plea and force him to trial, which he would lose. The court denied Warren’s motion.

Counsel first considers arguing that Warren’s guilty plea was not knowing or voluntary. Warren also proposes this argument, contending that his plea was involuntary because he “reluctantly” pleaded guilty. Reluctance is different from involuntariness; the question on appeal would be whether Warren’s guilty plea was voluntary, not whether he had reservations about his decision to admit guilt. Voluntariness of a guilty plea is ensured by a court’s compliance with the requirements of Federal Rule of Criminal Procedure 11. United, States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002). Counsel points out that in this case the court meticulously complied with Rule 11. Most relevant, the court asked Warren under oath (after explaining the ramifications of false statements) whether he understood that he had the right to plead not guilty, to which he responded “yes,” and whether anyone had threatened him or forced him to plead, to which he said “no.” The court also inquired about his mental state and made a factual finding that he was competent to plead. In addition, the court explained that Warren had the right to insist on a jury trial, to have assistance of counsel, to confront witnesses, and to refuse to give incriminating testimony. The court further informed Warren of the nature of the charge, the 10-year and $250,000 maximum penalties, that he might be sentenced to a period of supervised release, and that if he violated the terms of his supervision he would be returned to prison. Finally, the court explained sentencing procedures, including the role of the probation officer, the possibility of departures from the sentencing guidelines, and the court’s role as the ultimate decisionmaker. We agree with counsel that the court substantially complied with Rule 11, so an appeal challenging Warren’s guilty plea as involuntary would thus be frivolous. See, e.g., id.

Counsel next considers arguing that the district court erred in refusing to allow Warren to withdraw his guilty plea either because Warren received ineffective assistance or because the plea was not supported by an adequate factual basis. Warren echoes this potential argument in his reply. After a court accepts a plea, the defendant may withdraw it prior to sentencing, but only if he can show a “fair and just reason.” Fed.R.Crim.P. 32(d) (formerly Rule 11(e)); United States v. Silva, 122 F.3d 412, 415 (7th Cir.1997). We would review a district court’s denial of a motion to withdraw only for an abuse of discretion. Silva, 122 F.3d at 414-15.

Ineffective assistance can render a plea involuntary and thus constitute a fair and just reason for allowing a defendant to withdraw his plea. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). Warren would need to establish, however, that his counsel’s performance fell below an objective standard of reasonableness and that but for counsel’s performance, he would not have pleaded guilty. United States v. Fudge, 325 F.3d 910, 923-24 (7th Cir.2003). Warren contends that counsel was ineffec[977]*977tive for telling him that absent a plea he would go to trial and be found guilty, for failing to obtain or review allegedly exculpatory police reports, and for failing to investigate why his alibi witness recanted. The district court concluded that the attorney’s statement at the plea hearing was not deficient performance; it was a true statement because the court would not have accepted his guilty plea if Warren maintained his refusal to admit the factual basis, and his attorney’s prediction about a guilty verdict was nothing more than an assessment of the government’s case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Hill v. Lockhart
474 U.S. 52 (Supreme Court, 1985)
United States v. Clement A. Messino
55 F.3d 1241 (Seventh Circuit, 1995)
United States v. Ernest Walker
98 F.3d 944 (Seventh Circuit, 1996)
United States v. Tony Silva
122 F.3d 412 (Seventh Circuit, 1997)
United States v. Charles W. Westbrook
125 F.3d 996 (Seventh Circuit, 1997)
United States v. Timothy L. Stewart
198 F.3d 984 (Seventh Circuit, 1999)
United States v. Carlton T. McIntosh
198 F.3d 995 (Seventh Circuit, 2000)
United States v. Rickey B. Wallace
276 F.3d 360 (Seventh Circuit, 2002)
Mustread v. Gilmore
966 F.2d 1148 (Seventh Circuit, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
86 F. App'x 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-warren-ca7-2004.