United States v. Anderson

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1612

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A LAN D. A NDERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-CR-240—Rudolph T. Randa, Judge.

A RGUED JANUARY 14, 2010—D ECIDED M AY 13, 2010

Before F LAUM, R OVNER, and H AMILTON, Circuit Judges.

F LAUM, Circuit Judge. Defendant-appellant Anderson

argues that the government breached a plea agreement

when it failed to move for a reduction to defendant’s

offense level pursuant to United States Sentencing Guide-

lines § 3E1.1(b). In the absence of a formal motion by

the United States, the district court could not apply the

reduction. The government concedes breach, but because

appellant did not object at sentencing, we review

the judgment under a plain-error standard. Anderson

2 No. 09-1612

does not demonstrate that he was prejudiced by the

violation and we find no miscarriage of justice. Any

procedural flaws in the sentencing hearing are harm-

less and we affirm.

I. Background

Anderson was indicted in the fall of 2005 as part of a

large-scale racketeering case focusing on the Latin Kings

street gang. On January 30 of that year, he shot Efrin

Delgado with a sawed-off shotgun from close range

after the two got into an argument over a woman while

at a bar. Delgado survived but suffered permanent

injuries. Anderson handed the shotgun off to an

associate, Rogelio Guarnero. Authorities recovered the

weapon at Guarnero’s house the next day, pursuant to

a valid search warrant. Anderson was charged with

conspiracy to commit racketeering, conspiracy to possess

with intent to distribute large quantities of crack and

powder cocaine, possession of an unregistered shotgun

with a barrel length of less than 18 inches (Count

Twenty-Four), and conspiracy to distribute cocaine. On

Nov. 5, 2008, after three years of pretrial proceedings,

Anderson and co-defendant Martin Martinez proceeded

to trial before a jury.

Two weeks before trial, the government offered Ander-

son a plea agreement that stipulated, inter alia:

The government agrees to recommend a two-level

decrease for acceptance of responsibility as authorized

by Sentencing Guidelines Manual § 3E1.1(a), but

No. 09-1612 3

only if the defendant exhibits conduct consistent with

the acceptance of responsibility. In addition, if the

court determines at the time of sentencing that the

defendant is entitled to the two-level reduction

under § 3E1.1(a), the government agrees to make a

motion recommending an additional one-level de-

crease as authorized by Sentencing Guidelines Manual

§ 3E1.1(b) because the defendant timely notified

authorities of his intention to enter a plea of guilty.

Section 3E1.1 reads:

(a) If the defendant clearly demonstrates acceptance

of responsibility for his offense, decrease the offense

level by 2 levels.

(b) If the defendant qualifies for a decrease under

subsection (a), the offense level determined prior to

the operation of subsection (a) is level 16 or greater,

and upon motion of the government stating that the

defendant has assisted authorities in the investigation

or prosecution of his own misconduct by timely

notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to

avoid preparing for trial and permitting the govern-

ment and the court to allocate their resources effi-

ciently, decrease the offense level by 1 additional level.

Comment 6 to § 3E1.1 states, in relevant part:

The timeliness of the defendant’s acceptance of re-

sponsibility is a consideration under both subsec-

tions, and is context specific. In general, the conduct

qualifying for a decrease in offense level under sub-

4 No. 09-1612

section (b) will occur particularly early in the case.

For example, to qualify under subsection (b), the

defendant must have notified authorities of his inten-

tion to enter a plea of guilty at a sufficiently early

point in the process so that the government may

avoid preparing for trial and the court may schedule

its calendar efficiently.

On the theory that the government “is in the best position

to determine whether the defendant has assisted authori-

ties in a manner that avoids preparing for trial,” the

Guidelines make the § 3E1.1(b) reduction available

only upon a formal government motion.

After three days of trial, Anderson came to court with

a signed copy of the plea agreement in which he

pleaded guilty to Count 24 (possessing an unregistered,

sawed-off shotgun). The PSR recommended that appel-

lant receive a two-level § 3E1.1(a) reduction, but not the

additional third point for prompt notification under

§ 3E1.1(b). Judge Randa began the hearing by remarking

that he “has read the [Presentence Investigation Report’s

(“PSR”)]” and was “prepared to proceed.” At that point,

Anderson stated he and his lawyer “went over [the

PSR] together” and that he had no objections to the

PSR beyond a minor factual correction. Later, appellant’s

counsel contested his involvement in the shooting

and objected to the PSR's recommendation of a

cross-reference from the firearm guideline (§ 2K2.1) to the

attempted murder guideline (§ 2A2.1(a)(2)), but said

nothing about acceptance of responsibility credits. During

a lengthy allocution, Anderson also left the topic of § 3E1.1

No. 09-1612 5

untouched. In fact, he stated “I understand that I went to

trial and took a plea in the middle of trial.”

The PSR identified a base offense level of 27 under the

attempted murder guidelines. Regarding the § 3E1.1(b)

reduction, the report stated:

According to the plea agreement, the government

intends to file a motion for an additional one level [sic]

reduction. However, Mr. Anderson did not timely

notify authorities of his intention to enter a plea of

guilty. Mr. Anderson appeared before the Court for

jury trial and then entered a plea of guilty. Therefore,

an additional one level [sic] decrease is not given.

Given Anderson’s criminal history, the report calculated

an applicable guideline sentence of 121 to 151 months

coupled with supervised release of 2 to 3 years. The

statutory maximum punishment for possession of a

sawed-off shotgun, however, was 120 months’ imprison-

ment. During the hearing, the court engaged Ander-

son in a lengthy discussion about appellant’s family, up-

bringing, criminal history, motivation for joining a gang,

and the immense threat that gang violence posed to com-

munities. Following allocution, Judge Randa continued

to view Anderson skeptically, noting that the defendant

“seems to think he can do everything better than someone

else, including his legal representation.” The court thus

sentenced Anderson to the maximum 120-month sen-

tence. It also imposed a three-year term of supervised

release, stating:

Now, I have to place you on supervised release,

Mr. Anderson. And I’m going to set—obviously set

some conditions of supervised release. I’m going to

6 No. 09-1612

waive the fine in this case, because you don’t have,

as the analysis of your economic circumstances dis-

closes, the ability to pay a fine in this case. Minimum

fine is $15,000. Statutory. But you do have to pay the

$100 mandatory special assessment, which the

Court informed you of at the time of your plea. . . .

Now, the Court’s disposition again also as to Count 24,

supervised release for 3 years.

Judge Randa then went on to explain the conditions of

the supervised release and their respective justifications.

One of his comments reads as follows: “The presentence

report indicates that you were a marijuana user,

Mr. Anderson, so the Court—unless the defense objects—

is going to recommend that he participate in a drug

treatment program.” No objection followed.

Anderson puts forward two claims. First, he argues

that the district court committed clear error that runs

against the interests of justice when it neglected to hold

the government to the terms of the plea agreement. Ac-

cordingly, he asks that we remand the case to the

district court for rehearing on the issue. Second, he

asserts that the district court did not adequately con-

sider the factors specified in 18 U.S.C. § 3553(a) prior

to sentencing defendant to three years of supervised re-

lease.

II. Discussion

The threshold issue in Anderson’s appeal of his sen-

tence is whether he merely forfeited or fully waived his

right to object to the guideline calculation. His counsel

No. 09-1612 7

acknowledges at least the former by stating that

“Mr. Anderson did not raise the government’s obliga-

tion to move for the third point for acceptance of responsi-

bility in the district court and has forfeited it for re-

view.” If we accept this argument, we would review

Judge Randa’s decision for plain error because Anderson

never presented his claim to the district court. See Fed. R.

Crim. P. 52(b); Puckett v. United States, 129 S. Ct. 1423,

1429 (2009); United States v. Huffstatler, 571 F.3d 620, 622

(7th Cir. 2009); United States v. Ortiz, 431 F.3d 1035, 1038

(7th Cir. 2005).

On the other hand, the government asserts that

Anderson affirmatively waived his right to appellate

review of the third-point reduction by endorsing the

PSR. That is, the United States attempts to portray the

lack of objections to the government’s compliance with

the plea agreement as a strategic decision by Anderson.

From this perspective, appellant stayed quiet because

he sought to divert the court’s attention from whether

any § 3E1.1 adjustment for acceptance of responsibility

was appropriate in his case at all. See United States v.

Jones, 52 F.3d 697, 701 (7th Cir. 1995) (holding that a

sentencing judge may look for “genuine remorse” or

complete acceptance of responsibility before awarding a

reduction under § 3E1.1(a)).

To distinguish between forfeiture and waiver, we

examine a party’s state of mind at the time that an objec-

tion could have been raised. Forfeiture takes place

when counsel or a defendant negligently bypasses a

valid argument. See United States v. Olano, 507 U.S. 725,

8 No. 09-1612

733 (1993); United States v. Cooper, 243 F.3d 411, 416 (7th

Cir. 2001). By contrast, waiver requires a calculated

choice to stay silent on a particular matter. Olano, 507

U.S. at 733 (“[W]aiver is the ‘intentional relinquishment

or abandonment of a known right.’ ”) (citations omitted);

United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.

2005) (“There may be sound strategic reasons why a

criminal defendant will elect to pursue one sentencing

argument while also choosing to forego another, and

when the defendant selects as a matter of strategy, he

also waives those arguments he decided not to present.”);

see also United States v. Jacques, 345 F.3d 960, 962 (7th Cir.

2003). “Unlike forfeiture, waiver is not subject to plain

error analysis, because the waiver extinguishes any error.”

United States v. Redding, 104 F.3d 96, 99 (7th Cir. 1996).

We have previously held that defense counsel’s oral

acceptance of the terms of a PSR without objections

constitutes a waiver of the defendant’s rights to subse-

quently challenge the sentence. United States v. Brodie,

507 F.3d 527, 531-32 (7th Cir. 2007); United States v.

Staples, 202 F.3d 992, 995 (7th Cir. 2000). As we ex-

plained in our decision in Jaimes-Jaimes, however, there

is no rigid rule for finding waiver in acquiescence.

Instead, we evaluate each omission individually. Jaimes-

Jaimes, 406 F.3d at 848. Where the government cannot

proffer any strategic justification for a decision, we

can assume forfeiture. Brodie, 507 F.3d at 532.

Under the aforementioned precedent, this case is a

close one. Anderson may have well tried to salvage a

generally favorable plea agreement to the greatest

No. 09-1612 9

extent possible after seeing a conviction looming on

the horizon. An objection on the grounds that the gov-

ernment failed to move for a promised § 3E3.1(b) reduc-

tion would not have advanced Anderson’s cause by

much because by its terms, the credit applies only to

defendants who plead guilty early enough that “the

government may avoid preparing for trial.” We need not

identify the exact point in time at which an individual

becomes ineligible for § 3E3.1(b), but we have no dif-

ficulty concluding that Anderson, who brought the

signed plea agreement in on the fourth day of trial, was

too late. Appellant’s counsel may have anticipated that

the district court would also reach this reasonable con-

clusion and decided that the argument was not worth

advancing. Indeed, she and Anderson could have

thought that asking for the third-level reduction would

antagonize the sentencing judge and undermine any

further plea for leniency. Such a strategic choice is the

epitome of waiver, but the record before us requires us

to draw several speculative inferences to reach this con-

clusion.

We need not do so to resolve this case. Waiver

principles must be construed liberally in favor of the

defendant. United States v. Sumner, 265 F.3d 532, 539 (7th

Cir. 2001). The only way Anderson could have moved

the guidelines below the ten-year ceiling set out in 26

U.S.C. § 5871 was to ask for all three offense level credits.

If failure to do so amounted to a deficiency on behalf of

his counsel, our usual presumption that attorneys act

reasonably would necessitate a finding of forfeiture. See

Jaimes-Jaimes, 406 F.3d at 848 (“[A]n argument should be

10 No. 09-1612

deemed forfeited rather than waived if finding waiver

from an ambiguous record would compel the conclusion

that counsel necessarily would have been deficient to

advise the defendant not to object.”) (citing United States

v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001)); United

States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (stating that,

in the Sixth Amendment context, “[w]e presume

that counsel is effective, and a defendant bears a heavy

burden in making out a winning claim based on inef-

fective assistance of counsel.”). Yet even under plain

error review, which would require a most generous

reading of the record, the United States would prevail.

Applying that standard, we would reverse the deter-

mination of a district court only when we find: (1) an

error or defect (2) that is clear or obvious (3) affecting

the defendant’s substantial rights (4) and seriously im-

pugning the fairness, integrity, or public reputation of

judicial proceedings. Olano, 507 U.S. at 736. The parties

agree that the government’s failure to move for a § 3E1.1(b)

reduction satisfies elements 1 and 2. Anderson claims

that his case fulfills condition 3 as well, since the extra

point reduction could have changed his guideline range

from 121 to 151 months to 110 to 137 months. Therefore,

but for the breach, Judge Randa could have sentenced

Anderson to a term shorter than the statutory maximum

120 months while remaining within the guideline

range. Such a possibility is not enough to satisfy the

“remarkably demanding” plain error test. United States

v. Salazar, 453 F.3d 911, 913 (7th Cir. 2006). “In the con-

text of an arguably breached plea agreement, [defen-

dant-appellant] must show that but for the breach, his

No. 09-1612 11

sentence would have been different.” Id.; see also United

States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir. 1992). He

has not done so here, where the district court con-

sciously imposed the maximum punishment permitted

by law on an individual it viewed as recalcitrant. More-

over, Anderson cannot demonstrate that he suffered

from a manifest miscarriage of justice necessary for

relief. Cf. United States v. White, 903 F.2d 457, 466-67 (7th

Cir. 1990). The alleged deficiency was the govern-

ment’s failure to move for a reduction that, as we ex-

plained above, was inapplicable on its face. Since we

are confident that Judge Randa would have exercised

his discretion to avoid awarding Anderson the benefits

of § 3E1.1(b), we find no plain error in the district

court’s sentencing decision.

Likewise, we find no merit in Anderson’s claim that

the district court failed to properly consider the factors

listed in 18 U.S.C. § 3553(a) when sentencing him to

three years of supervised release. Appellant concedes

that Judge Randa’s extensive discussion of gang violence

and Anderson’s background covered all necessary bases

for the 120-month sentence. But he argues that the court

did not make the requisite findings when he moved on

to the supervised release stage of the sentence. Anderson

takes particular issue with the fact that Judge Randa

never recited that guideline range for supervised release

during the hearing. That is, according to the appellant,

the shift in topics demanded a separate comprehensive

analysis.

12 No. 09-1612

We have never required such repetition from the

district court. When reviewing a sentence, we first check

the proceedings under an abuse-of-discretion standard

to ensure that “the district court committed no sig-

nificant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any devia-

tion from the Guidelines range.” Gall v. United States, 552

U.S. 38, 51 (2007). We then examine the sentence for

reasonableness. United States v. Abbas, 560 F.3d 660, 666 (7th

Cir. 2009). Anderson, however, never objected to the

district court’s imposition of three years of supervised

release. Accordingly, we again apply a plain error test

and find Judge Randa’s discussion adequate.

To satisfy procedural justice requirements as set out in

Gall, a sentencing judge “must correctly understand

what the Guidelines recommend.” United States v.

Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). Morever, even

where a district court makes a mistake, we will affirm

a reasonable sentence if the government proves that it

would not change on remand. United States v. Abbas, 560

F.3d 660, 667 (7th Cir. 2009); United States v. Jackson, 549

F.3d 1115, 1118 (7th Cir. 2008); United States v. White, 519

F.3d 342, 349 (7th Cir. 2008). Thus, while our precedent

implores a judge to announce the suggested guidelines

term of supervised release at the beginning of his § 3553(a)

analysis to show that he understands the recommenda-

tion, United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.

No. 09-1612 13

2009), any deviation from that approach here is harm-

less. United States v. Anderson, 517 F.3d 953, 965 (7th

Cir. 2008) (“An error is harmless if it ‘did not affect the

district court’s selection of the sentence imposed.’ ”). In

any event, a party who is concerned about the length

or conditions of the supervised release portion of the

sentence should bring those concerns to the court’s at-

tention before the court imposes the sentence.

In Gibbs, we remanded the case for resentencing

because the district judge gave no indication that she

was aware that the Guidelines recommended five years

of supervised release when she imposed twice that term

on appellant. Accordingly, we were “unable to satisfy

ourselves that the district court correctly calculated the

advisory Guideline range.” 578 F.3d at 685-96. Here, by

contrast, the district court nailed the recommended

period of supervised release on the head. Together

with Judge Randa’s express mentions of the PSR in the

earlier part of the hearing, this fact makes it inappro-

priate for us to conclude that the district court did not

“understand” the guideline range. Cf. Gibbs, 578 F.3d at

695 (“The Government speculates that the district court

knew that the Guideline range was five years, but it

provides no evidence to support this assertion; at oral

argument, the Government could not identify a single

statement by the court reflecting its knowledge that the

advisory range was five years. Nowhere in the record

does it even establish that the district court adopted the

Guideline range in the presentencing report. Under the

circumstances, we are unable to satisfy ourselves that the

district court correctly calculated the advisory Guideline

14 No. 09-1612

range.”). Certainly, an explicit announcement of the

guidelines recommendation would have simplified the

issue before us. In this case, however, where a judge

has diligently assessed other parts of the PSR and

decided to impose a within-guidelines term of super-

vised release, silence did not affect appellant’s substan-

tive rights.

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s judgment.

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