USA v. James Gilliam
Filing
Filed Nonprecedential Disposition PER CURIAM. In each appeal the motion to withdraw is GRANTED, and the appeal is DISMISSED. Booker's pro se request for appointment of substitute counsel is DENIED. Diane P. Wood, Chief Judge; Richard D. Cudahy, Circuit Judge and John Daniel Tinder, Circuit Judge. [6586059-2] [6586034-2] [6615632-2] [6615012-2] [6609949-2] [6589031-2] in 14-1865 [6632494-1] [6632494] [14-1817, 14-1865]
Case: 14-1817
Document: 32
Filed: 01/07/2015
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 6, 2015
Decided January 7, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 14‐1817 & 14‐1865
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JAMES ERIC GILLIAM and
DERRICK JEROD BOOKER,
Defendants‐Appellants.
Appeals from the United States District
Court for the Central District of Illinois.
Nos. 12‐cr‐40020‐002 & 12‐cr‐40020‐004
James E. Shadid,
Chief Judge.
O R D E R
James Gilliam and Derrick Booker were part of a Quad Cities drug ring that sold
crack cocaine from 2006 through 2011. Both men pleaded guilty to conspiracy to possess
and distribute crack, see 21 U.S.C. §§ 846, 841(a)(1), and waived the right to appeal as
part of a plea agreement. The district court found that each defendant is a career
offender under the sentencing guidelines, see U.S.S.G. § 4B1.1, with a corresponding
imprisonment range of 188 to 235 months. The court sentenced Gilliam to 120 months’
imprisonment and Booker to 188 months’ imprisonment. Both defendants filed a notice
of appeal, and we consolidated the cases for briefing and disposition. Appointed
counsel for each defendant separately asserts that his client’s appeal is frivolous and
moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We invited both
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Nos. 14‐1817 & 14‐1865
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defendants to respond to his lawyer’s submission, see CIR. R. 51(b), but we received only
a series of letters from Booker asking us to appoint substitute counsel. Each lawyer’s
Anders submission explains the nature of the case and adequately addresses the points
that an appeal of this kind might be expected to involve, and thus we limit our review
to the subjects counsel discuss. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Each appellate lawyer begins by analyzing whether Gilliam or Booker could
challenge the adequacy of his plea colloquy or the voluntariness of his guilty plea. Yet
Gilliam’s attorney does not say whether he consulted his client about the possibility of
challenging his guilty plea, and Booker’s lawyer reports that his client never answered
such inquiries. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States
v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). This uncertainty does not require that we
deny these Anders submissions, however, because the discussion in the briefs and our
own review of the record persuades us that any challenge to the voluntariness of the
guilty pleas would be frivolous. In both cases we would be limited to reviewing for
plain error since neither defendant sought to withdraw his plea in the district court.
See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013).
We agree with the lawyers that the district court substantially complied with
Federal Rule of Criminal Procedure 11, which is enough to shield the guilty pleas from
challenge on direct appeal. See United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir.
2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997). The district court
conducted a single plea colloquy for both defendants but addressed the men separately
as necessary to comply with Rule 11(b). With only minor exceptions that colloquy was
thorough. The court did neglect to state explicitly that Gilliam and Booker could be
prosecuted for perjury if they lied under oath during the proceeding, see FED. R. CRIM. P.
11(b)(1)(A), but that oversight was harmless because perjury charges are not pending or
contemplated for either defendant. See Blalock, 321 F.3d at 689; United States v. Graves, 98
F.3d 258, 259 (7th Cir. 1996). The court also overlooked the possibility of restitution,
see FED. R. CRIM. P. 11(b)(1)(K), but again the omission was harmless because restitution
was not imposed and the defendants were admonished about the prospect of a fine up
to $2 million. See United States v. Fox, 941 F.2d 480, 484–85 (7th Cir. 1991).
It follows that these appeals are frivolous. Although only Booker’s lawyer makes
note of the appeal waivers, both defendants agreed to a broad waiver of his right to
challenge his conviction or sentence on direct appeal or in a collateral proceeding. An
appeal waiver stands or falls with the guilty plea, and because neither of the defendants
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can press a nonfrivolous appellate claim about the voluntariness of his guilty plea, we
must enforce the waivers. See United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013);
United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011). Given the appeal waivers,
we would not even reach the potential issues that counsel for Gilliam contemplates
about his client’s designation as a career offender and the reasonableness of his prison
term.
In each appeal the motion to withdraw is GRANTED, and the appeal is
DISMISSED. Booker’s pro se request for appointment of substitute counsel is DENIED.
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