United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 4, 2007

Decided April 6, 2007

Before

Hon. RICHARD A. POSNER, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-3146

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMETREOUS BROWN,

Defendant-Appellant.

Appeal from the United States 

District Court for the Southern District of

Indiana, Indianapolis Division

No. 1:05CR00082-001

Larry J. McKinney,

Chief Judge.

O R D E R

Demetreous Brown pleaded guilty to one count of conspiring with intent to

distribute more than 50 grams of crack and more than five kilograms of a substance

containing cocaine, see 18 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii)-(iii), eleven counts of

distributing crack cocaine, see 18 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii),

and one count of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1). The

district court sentenced him to 220 months in prison. Brown appealed, but his

counsel now moves to withdraw because he cannot discern a nonfrivolous basis for

appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Brown opposed his

attorney’s submission, see Cir. R. 51(b), and moved for appointment of new counsel. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance 

with Fed. R. App. P. 32.1
No. 06-3146 Page 2

1

 Although we construe the nature of his challenge as one to the

voluntariness of his plea, Brown in fact labels this claim as one for ineffective

assistance of counsel. He basically charges counsel with failing to recognize and

inform him about the law and defenses to the charges against him. To the extent

Brown wishes to raise ineffective assistance of counsel claims, however, those are

best brought in a collateral attack. See, e.g., United States v. Rezin, 322 F.3d 443,

445 (7th Cir. 2003). 

We limit our review to the potential issues identified by counsel and Brown. See

United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). 

Brown in his Rule 51(b) response says that he wants his conviction vacated,

and we construe this as a desire to withdraw his guilty plea.1

 He did not move to

withdraw his plea in the district court, so our review would be for plain error. See

United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,

467 F.3d 630, 632 (7th Cir. 2006). Brown asserts essentially that he should be

allowed to withdraw his plea because it was not knowing and voluntary. He says

that his plea was not knowing and voluntary because he did not understand the

nature of the conspiracy charge against him, see Fed. R. Crim. P. 11(b)(1)(G). Had

he understood the charge, he says, he would have known that he had meritorious

defenses against it. For instance, he asserts that his eleven sales of crack to a

government agent establish only that he was accused of “conspiring with the

government” or that he was merely a buyer/seller of drugs, rather than a

conspirator.

But the record does not support Brown’s claims. Not only did the

superceding indictment properly charge a conspiracy among Brown and nine nongovernment agents, but the district court also substantially complied with Rule 11

of the Federal Rules of Criminal Procedure, as it was required to do to ensure that

Brown’s guilty plea is knowing and voluntary, see United States v. Blalock, 321 F.3d

686, 688 (7th Cir. 2003). Conspiracy is “generally considered a rather complicated

offense,” see id. at 689, but Brown has not argued that factors such as his age,

intelligence, or education affected his understanding of the consequences of his plea. 

The district court properly explained the conspiracy charge by telling Brown its

elements and the burden of proof that the government would have to bear. Further,

the government proffered evidence supporting a conspiracy, including evidence that

Brown and others worked together to sell drugs and a gun and to avoid police

detection; communicated about upcoming drug shipments and fears of police

surveillance; and replaced their cell phones as soon as Brown thought he saw

undercover officers. Where, as here, the district court explains the conspiracy

charge, and the government provides the factual basis for it, it will suffice to ensure
No. 06-3146 Page 3

that the guilty plea was knowing and voluntary. See id. Any such challenge here

would be frivolous.

We turn next to counsel’s consideration of whether Brown could challenge his

sentence. Counsel first evaluates whether the district court should have credited

Brown’s claim that the government engaged in sentencing manipulation by

purchasing crack from him eleven times before arresting him. Under the doctrine

of sentencing manipulation, a sentencing court may not use evidence to increase a

defendant’s sentence “if the government procured the evidence through outrageous

conduct” just to increase the defendant’s guidelines imprisonment range. United

States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006) (quoting United States v.

Messino, 55 F.3d 1241, 1256 (7th Cir. 1995)). But sentencing manipulation is not

recognized as a defense in this circuit; “[i]t is within the discretion of law

enforcement to decide whether delaying the arrest of the suspect will help ensnare

co-conspirators, give the law enforcement greater understanding of the nature of

the criminal enterprise, or allow the suspect enough ‘rope to hang himself.’” Id. 

(quoting United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996)). Counsel correctly

concludes that the district court properly rejected Brown’s argument. 

Counsel also questions whether Brown could challenge the district court’s use

of the 100:1 sentencing disparity between crack cocaine and powder cocaine in

calculating Brown’s sentencing range. But a district court must to follow the 100:1

ratio in calculating defendant’s guidelines range because the ratio reflects the

“policy choices made by Congress and by the Sentencing Commission.” United

States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). A challenge to Brown’s sentence

on this ground would be frivolous. 

Counsel also considers whether Brown could challenge the reasonableness of

his sentence under 18 U.S.C. § 3553(a). Counsel questions whether Brown could

argue that his tragic personal background, which included one parent’s murder and

the other’s suicide, merited a lower sentence. 

Brown’s sentence falls within the properly calculated guidelines range and

would therefore be presumed reasonable. United States v. Gama-Gonzalez, 469

F.3d 1109, 1110 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). Cf. United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May

1, 2006), cert. granted, 75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754) (granting

writ of certiorari to decide whether presuming sentence within guidelines range to

be reasonable is consistent with United States v. Booker, 543 U.S. 220 (2005)). With

or without a presumption of reasonableness, however, a reasonableness challenge

here would be frivolous because the district court properly considered the

sentencing factors in 18 U.S.C. § 3553(a) in arriving at Brown’s sentence. The court

considered Brown’s properly calculated guidelines range, see id. § 3553(a)(4),
No. 06-3146 Page 4

Brown’s criminal history, see id. § 3553(a)(1), the seriousness of the current

offenses, see id. § 3553(a)(2)(A), Brown’s difficult childhood experiences of losing

both parents, see id. § 3553(a)(1), the supportive letters written by Brown’s family,

see id. § 3553(a)(1), the need for deterrence, see id. § 3553(a)(2)(B), and the need to

protect the public, see id. § 3553(a)(2)(C). Because there were “an awful lot of

drugs” involved and because the conviction involved a gun, which raised a

“possibility of violence,” see id. § 3553(a)(2)(A), the court found that a sentence

within the guidelines range was appropriate. The court therefore sentenced Brown

to 220 months’ imprisonment on the drug counts and 120 months’ imprisonment on

the gun count. Counsel has not identified any factors within 18 U.S.C. § 3553(a)

that would compel a lower sentence.

Finally, Brown raises two more challenges that are readily refuted. First, he

argues that he was unaware that he was being charged with distributing crack

cocaine, as opposed to other forms of cocaine base. But the superceding indictment,

to which he pleaded guilty, charged him with eleven counts of distributing “crack,”

and the government’s proffered evidence repeatedly referred to Brown’s sales of

“crack,” so a challenge on that basis would be frivolous. Second, he challenges the

district court’s calculation of his offense level, suggesting that the district court

double-counted his firearm possession by adding two levels to his offense level for

his possession of a firearm in connection with the drug offenses, see U.S.S.G.

§ 2D1.1(b), when he had already pleaded guilty to possessing the same firearm as a

felon, see 18 U.S.C. § 922(g)(1). But it is not double-counting to add two levels

under § 2D1.1(b) where the defendant has pleaded guilty to a separate § 922(g)(1)

offense involving the same firearm, see United States v. Pierce, 388 F.3d 1136, 1138-

39 (8th Cir. 2004); United States v. Taylor, 248 F.3d 506, 516-17 (6th Cir. 2001). 

Any challenge to the guidelines calculation on this basis would be frivolous. 

Brown’s remaining challenges to his sentence are also frivolous and merit no

discussion.

Accordingly, counsel’s motion to withdraw is GRANTED, Brown’s motion to

appoint substitute counsel is DENIED, and the appeal is DISMISSED.