United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 20, 2022 

Decided July 20, 2022 

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 21-2831 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

JAMES BRISCOE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division. 

No. 1:19CR00374-001 

Tanya Walton Pratt, 

Chief Judge. 

O R D E R

James Briscoe supplied methamphetamine to a web of drug dealers in Indiana. 

He pleaded guilty to conspiring to possess with intent to distribute, and distributing,

500 grams or more of methamphetamine, as well as unlawfully using a communication 

facility to facilitate his crimes. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 843(b), 846. The 

district court sentenced Briscoe to 276 months in prison, plus 10 years of supervised 

release. Briscoe filed a notice of appeal, but his appointed counsel asserts that the 

appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). 

Briscoe has not responded to the motion. See CIR. R. 51(b). Counsel’s brief explains the 

nature of the case and addresses the potential issues that an appeal of this kind might 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 21-2831 Page 2 

involve. Because the analysis in the brief appears thorough, we limit our review to the 

subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). 

Counsel first informs us that she consulted with Briscoe about the potential risks

of challenging his plea, and that he wishes to do so regardless. See United States v. 

Konczak, 683 F.3d 348, 349 (7th Cir. 2012). But she properly concludes that any potential 

challenge to Briscoe’s unconditional guilty plea would be frivolous. Because Briscoe did 

not move in the district court to withdraw his plea, we would review such an argument 

now only for plain error. United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). 

This sort of challenge would necessarily fail here because the plea hearing substantially 

complied with Rule 11 of the Federal Rules of Criminal Procedure. Id. In a thorough 

colloquy, Briscoe confirmed with the court his competency and desire to plead guilty

without an agreement, reviewed the rights he would forgo by doing so, and

acknowledged the potential penalties associated with his offenses. See FED. R. CRIM. P.

11(b). Then, Briscoe addressed the court and agreed that the government’s summary of 

his interactions with co-conspirators and their movement of methamphetamine was 

accurate. These sworn statements are presumed to be true, United States v. Graf, 827 F.3d 

581, 584 (7th Cir. 2016), and would foreclose any attempt to withdraw the plea on 

appeal.

Next, counsel considers, and rejects, potential challenges to Briscoe’s sentence. 

As counsel explains, Briscoe’s base offense level was correctly calculated at 36 because 

he admitted at the plea colloquy that he distributed between 1.5 and 4.5 kilograms of 

methamphetamine. U.S.S.G. § 2D1.1(a)(5), (c)(2). Likewise, we would find no error with 

Briscoe’s total offense level of 35, which the court based on a two-level firearms

enhancement and a three-level reduction for acceptance of responsibility. See U.S.S.G. 

§§ 2D1.1(b)(1), 3E1.1(a)–(b). Although Briscoe denied possessing a firearm himself, he

did not dispute that he and his co-conspirators discussed their use of guns for 

protection and to collect debts on numerous occasions during their drug conspiracy, 

and this evidence of his knowledge alone would suffice. See U.S.S.G. § 1B1.3(a)(1)(B);

United States v. Ramirez, 783 F.3d 687, 690–91 (7th Cir. 2015). 

Counsel further contemplates disputing Briscoe’s status as a career offender, and 

the resulting criminal history category of VI, but she recognizes (as did counsel in the 

district court) that any such challenge is squarely foreclosed by our precedent and 

therefore frivolous. We have interpreted the term “controlled substance offense,” 

U.S.S.G. § 4B1.2(b), to include prior state convictions—like Briscoe’s Indiana conviction 

for dealing in cocaine—that criminalize substances that are not controlled federally. 
No. 21-2831 Page 3 

See United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020), cert. denied, 141 S. Ct. 1239 

(2021). And we have consistently rejected invitations to revisit this decision and adopt 

the narrower interpretation used in some other circuits. See, e.g., United States v. Wallace, 

991 F.3d 810, 817 & n.3 (7th Cir.), cert. denied, 142 S. Ct. 362 (2021). Based on this careeroffender designation, the district court correctly calculated the resulting guidelines 

range to be 292 to 365 months’ imprisonment. 

Finally, counsel rightly sees no point in renewing Briscoe’s final preserved 

argument on appeal. He asked the district court to vary from the guidelines range as a 

policy matter, asserting that the purity of the methamphetamine he distributed “is not 

an accurate indicator of culpability.” But we never require a court to deviate from the 

Guidelines for policy reasons, though it may do so in its discretion. See United States v. 

Bostock, 910 F.3d 348, 350 (7th Cir. 2018). The court otherwise appropriately considered 

the mitigating factors of Briscoe’s unstable childhood, mental health and substance 

abuse struggles, his educational efforts, and his family support in fashioning its 

ultimate sentence of 276 months’ imprisonment. See 18 U.S.C. § 3553(a). The resulting

sentence was 16 months lower than the bottom of Briscoe’s guidelines range, and we 

agree with counsel that nothing in the record could rebut the presumption that this 

below-guidelines sentence was substantively reasonable. See United States v. Fitzpatrick, 

32 F.4th 644, 651 (7th Cir. 2022). 

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