United States v. Winston

373 F. App'x 594
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 11, 2010
DocketNo. 09-1446
StatusPublished

This text of 373 F. App'x 594 (United States v. Winston) 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. Winston, 373 F. App'x 594 (7th Cir. 2010).

Opinion

ORDER

Javail Winston pleaded guilty without a plea agreement to one count of bank rob[595]*595bery, admitting that a bank teller handed over $1,540 after he gave her a note threatening to kill her if she refused. See 18 U.S.C. § 2113(a). The district court sentenced him to 175 months’ imprisonment, well above his applicable guidelines range of 46 to 57 months. Winston filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Winston to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Because counsel’s brief is facially adequate, we limit our review to the potential issues he has identified. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009) (per curiam); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

This case marks Winston’s sixth bank robbery and tenth felony conviction. Between December 1980 and June 1981, Winston committed a series of four armed robberies yielding four convictions, two each in federal and state court. Winston added a fifth conviction, for escape, after he fled the state courthouse following his sentencing for the bank robberies. Even so, he was released from custody in October 1990, and about eight months later he embarked on another crime spree, robbing-two women and his fifth bank. For the bank robbery he was sentenced in federal court as a career offender to 168 months’ imprisonment, and for the other robberies he was sentenced in an Illinois court to a total of 11 years to run concurrently with the federal sentence. After his release in 2004, Winston was suspected of committing three additional bank robberies before he was arrested for his current offense in October 2007.

Despite this extensive criminal history, the probation officer calculated a total offense level of 21 and a category III criminal history, yielding an imprisonment range of just 46 to 57 months. That is because only four criminal history points total were assessed for the fifth bank robbery and a 2006 conviction for driving while intoxicated. Many of his other convictions were too old to count, and he also caught a very lucky break: neither of his most-recent state convictions for robbery were counted because those sentences were never reported to, or recorded in the records of, the Illinois Department of Corrections.

The government moved for an above-guidelines sentence, arguing that Winston’s criminal history category did not reflect the seriousness of his criminal past and the great likelihood of his recidivism. Although this time the career-offender guideline, U.S.S.G. § 4B1.1, did not apply, the government argued that Winston should be sentenced again as though he was a career offender within the range of 151 to 188 months. The government also urged the district court to assess a sentence longer than the 168 months Winston received for his fifth bank robbery, which had not been a sufficient deterrent.

Winston conceded that his category III criminal history under-represented his criminal history but argued that a sentence within the career-offender range would be too harsh. Instead, he proposed a sentence of 100 to 125 months in prison. Winston apologized for his actions and explained that his robbery was “an act of desperation” to prevent his family from being evicted from their home. The district court, however, noted the obvious pattern of behavior and how quickly Winston had resumed his criminal behavior after being released from prison. Incarceration, the court reasoned, was the only way to protect the public from Winston, and the court was convinced that the only reason Winston had not committed more robberies was because he was in prison most of [596]*596his adult life. The court agreed with the government that the new term should exceed 168 months and imposed a sentence of 175 months’ imprisonment.

In their Anders submission counsel note that Winston wants his guilty plea set aside, so they examine the plea colloquy for a possible appellate claim. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). But counsel have noticed only one shortcoming in the colloquy: the district court did not advise Winston of his right at trial to present evidence on his own behalf. See Fed.R.CrimP. 11(b)(1)(E). Because Winston did not move to withdraw his plea in the district court, 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. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir.2006).

It would be frivolous to argue that the district court committed plain error. The court essentially informed Winston of his right to present evidence when it explained that he could testify in his own defense and compel others to testify for him. And Winston cannot claim to be ignorant of that right because the information was covered in Winston’s written plea declaration, which he acknowledged having read and understood. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Therefore, we would not find that this minor omission affected Winston’s decision to plead guilty. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008); United States v. Cross, 57 F.3d 588, 591 (7th Cir.1995).

Counsel also have considered arguing that Winston’s prison sentence, which is 118 months above his guidelines range, is unreasonably high. We would uphold as reasonable a sentence that exceeds the range recommended by the guidelines as long as the district court applies the factors set forth in 18 U.S.C. § 3553(a) and articulates an adequate statement of its reasons for imposing the sentence. See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. Tockes, 530 F.3d 628, 632 (7th Cir.2008).

Counsel correctly conclude that this argument would be frivolous because the district court thoroughly analyzed the § 3553(a) factors and amply justified sentencing Winston to 175 months.

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)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
United States v. Alfred L. Cross, Jr.
57 F.3d 588 (Seventh Circuit, 1995)
United States v. Richard E. Driver
242 F.3d 767 (Seventh Circuit, 2001)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)
United States v. Terrance E. Blalock
321 F.3d 686 (Seventh Circuit, 2003)
United States v. Ronald J. Valle
458 F.3d 652 (Seventh Circuit, 2006)
United States v. Larry Harvey
484 F.3d 453 (Seventh Circuit, 2007)
United States v. Jackson
576 F.3d 465 (Seventh Circuit, 2009)
United States v. Tockes
530 F.3d 628 (Seventh Circuit, 2008)
United States v. Jackson
547 F.3d 786 (Seventh Circuit, 2008)
United States v. Cano-Rodriguez
552 F.3d 637 (Seventh Circuit, 2009)
United States v. Griffin
521 F.3d 727 (Seventh Circuit, 2008)
United States v. Hurt
574 F.3d 439 (Seventh Circuit, 2009)
United States v. Wise
556 F.3d 629 (Seventh Circuit, 2009)
United States v. McIntyre
531 F.3d 481 (Seventh Circuit, 2008)
United States v. Villarreal-Tamayo
467 F.3d 630 (Seventh Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
373 F. App'x 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-winston-ca7-2010.