United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2018

Decided December 21, 2018

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-1134

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COMAR WHEELER,

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 16 CR 404 - 1

Samuel Der-Yeghiayan,

Judge.

O R D E R

Comar Wheeler was convicted by a jury of being a felon in possession of a 

firearm, see 18 U.S.C. § 922(g), and was sentenced to 78 months in prison. Wheeler filed 

a notice of appeal, but his appointed attorney contends that the appeal is frivolous, and 

she seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Wheeler responded, 

opposing counsel’s motion. See CIR. R. 51(b). Counsel’s submission explains the case and 

thoroughly addresses the issues that an appeal of this kind might involve, so we limit 

our review to the subjects that she and Wheeler discuss. See United States v. Bey, 748 F.3d 

774, 776 (7th Cir. 2014).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 18-1134 Page 2

Police officers responding to a “shots fired” 911 call chased and arrested 

Wheeler, a convicted felon, and seized a handgun from his waistband. Wheeler 

maintains that he possessed the gun under duress. At trial, he testified that a group of 

teenagers attacked and robbed him, and after one of them dropped a gun, he picked it 

up for protection. He was fleeing the area, he continues, when police apprehended him.

Counsel begins by addressing potential challenges to two of the district court’s

pretrial rulings. The first concerns the court’s decision to grant the government’s motion 

in limine requiring Wheeler to submit a proffer regarding evidence he wanted to 

introduce at trial to support a duress defense. Wheeler’s motion to reconsider that 

decision was summarily denied. Counsel considers challenging the summary denial as 

having affected his substantial rights. But she correctly concludes that this challenge

would be fruitless because any error was harmless: Wheeler was allowed to introduce 

evidence of coercion at trial, and the court later instructed the jury on duress (even 

though Wheeler never submitted a proffer), so the ruling did not “influence[] the jury’s 

verdict.” See Welch v. Hepp, 793 F.3d 734, 739 (7th Cir. 2015). Counsel also considers 

challenging the court’s ruling to exclude—on relevancy grounds—records from the 

Chicago Office of Emergency Management showing the frequency of “shots fired”

911 calls in the area where Wheeler was arrested. She properly concludes, however, that 

this challenge would be frivolous because the number of “shots fired” calls does not 

have a tendency to make Wheeler’s possession of a gun more or less likely. See FED. R.

EVID. 401(a); United States v. Lee, 502 F.3d 691, 696 (7th Cir. 2007).

Counsel next addresses another pretrial issue, regarding the admission of 

testimony from a detective who interviewed Wheeler after his arrest. Counsel considers

whether Wheeler could argue that the court should have excluded this testimony on the 

grounds that the conversation was not recorded. But counsel tells us that she cannot 

find any legal support for such a challenge, and indeed, we have determined that “there 

is no federal requirement that criminal interrogations be recorded.” United States v. 

Bruce, 550 F.3d 668, 673 (7th Cir. 2008). Relatedly, Wheeler asserts in his Rule 51(b) 

response that the detective’s testimony was untruthful, but “we will not ... invade the 

jury’s province of assessing credibility....” United States v. Rivera, 901 F.3d 896, 901 

(7th Cir. 2018) (internal quotation omitted).

Counsel then considers challenging three of the court’s evidentiary rulings at 

trial, but appropriately concludes that each would be frivolous. First, she discusses

arguing that the court erroneously limited Wheeler to introduce an officer’s incident 

report to impeach the author’s testimony rather than for its truth, as Wheeler wanted. 
No. 18-1134 Page 3

But any argument that the report should have been admitted for its truth would be 

frivolous because the report, if used for that purpose, would have been hearsay. 

See FED. R. EVID. 801(c); United States v. Burt, 495 F.3d 733, 736–37 (7th Cir. 2007). Second, 

the court denied Wheeler’s motion to disqualify an expert witness whose testimony 

about the firearm in Wheeler’s possession being loaded was inconsistent with a police 

report’s conclusion that it was not. Any error in that decision, though, we would 

conclude was harmless because the court allowed Wheeler to introduce that report to 

impeach the expert’s testimony, and the parties stipulated that police recovered no 

ammunition from the gun. See Welch, 793 F.3d at 739. Third, the court overruled 

Wheeler’s objection to the government’s calling of an officer who had already testified 

as a rebuttal witness. Any challenge to that ruling would be frivolous, too, because the 

court has considerable discretion over the mode and order of examining witnesses,

see FED. R. EV. 611(a), and here the government sought to call the witness to rebut 

testimony on topics which he did not discuss before.

Counsel also considers arguing that there was insufficient evidence to convict 

Wheeler such that the judge wrongly denied his two motions for acquittal and one for a 

new trial. See FED. R. CRIM. P. 29(a), (c), 33. But counsel aptly determines that this 

argument would be frivolous because the government presented evidence supporting 

each part of the charged crime: Wheeler testified that he possessed a firearm, and the 

parties stipulated both that Wheeler was a felon and that the firearm travelled through 

interstate commerce. See 18 U.S.C. § 922(g)(1). True, Wheeler testified that he possessed 

the gun under duress, but a jury would be entitled to disbelieve his testimony and 

determine that he was not credible. Therefore, his contrary testimony does not establish 

insufficiency of the evidence. Moreover, some evidence undermined his claim of duress, 

such as his continued possession of the firearm even when his supposed assailants were 

no longer present and his flight from the police with the gun hidden in his waistband. 

We would conclude that the jury could find Wheeler guilty beyond a reasonable doubt, 

see Rivera, 901 F.3d at 900–01 (motions for acquittal), and that the verdict was not 

contrary to the weight of the evidence, see United States v. Conley, 875 F.3d 391, 399 (7th 

Cir. 2017) (motion for new trial). 

Next, counsel asks whether Wheeler could challenge the procedural 

reasonableness of his sentence. She considers challenging the court’s refusal to apply a 

two-level reduction to the Sentencing Guidelines calculation for acceptance of 

responsibility, see U.S.S.G. § 3E1.1(a), on the grounds that Wheeler never contested the 

elements of the offense. Indeed, she contemplates arguing that Wheeler went to trial 

only to prove that he was not the one who shot the gun and brought police to the scene
No. 18-1134 Page 4

in the first place. But counsel appropriately rejects this challenge as frivolous because 

trial counsel at Wheeler’s sentencing hearing conceded that Wheeler had declined to 

sign a plea agreement which would have reserved that question for sentencing. 

Relatedly, in his Rule 51(b) response, Wheeler maintains that he deserved the reduction

because he offered to plead guilty as part of a plea agreement that the government 

refused to accept. But an argument on these grounds would be frivolous because it is 

not only contrary to his counsel’s recollection, but also beside the point: his acceptance 

of responsibility was not contingent on the government’s acceptance of any agreement 

that he may have offered.

Counsel next considers challenging the sentence’s substantive reasonableness,

but properly rejects any potential argument on that basis as frivolous, too. Wheeler’s 78-

month sentence is within the Guidelines range (70–87 months), so we would presume 

that it is reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States v. 

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). A defendant can rebut that presumption by 

showing that the sentence does not comport with the 18 U.S.C. § 3553(a) factors, 

see United States v. Taylor, 907 F.3d 1046, 1051–52 (7th Cir. 2018), but Wheeler could not 

meet that burden. The court considered Wheeler’s history and characteristics (he was 49

years old at sentencing, had family support, and apparently overcame his heroin 

addiction, but he had 12 felony convictions); the nature of the offense (“a very serious 

matter”); and the need to promote respect for the law and deter future misconduct 

(Wheeler had a prior conviction for the same offense), protect the public (Wheeler was 

drunk when he possessed the gun), and provide treatment (the court recommended 

that Wheeler participate in a drug-treatment program). Counsel also rightly decides 

that it would be frivolous to challenge Wheeler’s supervised-release condition requiring 

him to submit to DNA collection because the condition is mandatory. See 34 U.S.C. § 

40702(a)(2); see also Maryland v. King, 569 U.S. 435, 465–66 (2013) (permitting DNA 

collection from arrestees). 

Last, counsel considers arguing that Wheeler received ineffective assistance of 

counsel. Counsel rightly notes, however, that it would be more prudent to do so on 

collateral review when he could develop a more thorough record. See United States v. 

Flores, 739 F.3d 337, 341–42 (7th Cir. 2014); see also Massaro v. United States, 538 U.S. 500, 

504 (2003). 

Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.