United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 2, 2018

Decided November 6, 2018

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 18-1326

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAUNDALE J. JOHNSON,

Defendant-Appellant.

Appeal from the United States District 

Court for the Southern District of Illinois.

No. 17-CR-40031-JPG-1

J. Phil Gilbert,

Judge.

O R D E R

Shaundale J. Johnson pleaded guilty to two counts of distributing 

methamphetamine, 21 U.S.C. § 841(a)(1), and the district judge sentenced him to 204 

months’ imprisonment on each count, to run concurrently. Johnson filed a timely notice 

of appeal, but his attorney asserts that the appeal is frivolous and seeks to withdraw. 

See Anders v. California, 386 U.S. 738 (1967). Johnson did not respond directly to the 

arguments in counsel’s submission, see CIR. R. 51(b), but instead filed a motion for the 

court to appoint a new attorney. Counsel’s brief explains the nature of the case and 

addresses the issues that an appeal of this kind might be expected to involve. Because 

counsel’s analysis appears thorough, we limit our review to the subjects she discusses. 

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NONPRECEDENTIAL DISPOSITION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. 18-1326 Page 2

Having verified that Johnson wishes to withdraw his guilty plea, counsel first 

considers whether Johnson could challenge his plea because the district judge did not 

wholly comply with Federal Rule of Criminal Procedure 11 in conducting the colloquy. 

See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Johnson did not move to 

withdraw his guilty plea in the district court, so we would review the adequacy of the 

plea hearing for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). Counsel 

points out two omissions in the plea colloquy, but properly concludes that both are 

harmless. First, the district judge failed to specifically inform Johnson that by pleading 

guilty, he was waiving his right to a jury trial. See FED. R. CRIM. P. 11(b)(1)(F). Although 

the district judge should have explicitly mentioned waiver, we are satisfied that the 

omission did not affect Johnson’s substantial rights. See United States v. Dominguez 

Benitez, 542 U.S. 74, 83 (2004). Johnson asked for a change of plea hearing. During the 

plea colloquy, the judge listed all of Johnson’s constitutional rights—including the right 

to a jury trial—and then confirmed that Johnson understood these rights and still 

wished to plead guilty. Based on the entirety of the record, there is no reasonable 

probability that failure to specifically advise Johnson of the waiver could lead to a 

different result. See id. Second, the district judge did not address forfeiture, restitution,

or the potential removal of a convicted non-citizen, see FED. R. CRIM. P. 11(b)(1)(J), (K), 

(O), but none of these issues applies in Johnson’s case.

Next, counsel considers whether Johnson could challenge his sentence as 

substantively unreasonable but correctly determines that an appellate attack would be 

pointless. Johnson’s 204-month sentence is within the properly calculated guidelines 

range, so we are permitted to presume it to be reasonable, and we do so here. See Rita v. 

United States, 551 U.S. 338, 347–51 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th 

Cir. 2005). Based on our review of the record, we are persuaded that the judge did not 

abuse his discretion in weighing the 18 U.S.C. § 3553(a) factors to arrive at the ultimate 

sentence. He noted Johnson’s history and characteristics (Johnson is “an addict” who 

“didn’t have the best upbringing and ... didn’t have a lot of guidance early on”) and the 

need to promote respect for the law and provide just punishment (Johnson “can’t seem 

to stay out of trouble,” despite getting a “tremendous break” in a previous federal drug 

case; he “got out [of prison] and immediately basically got back into the [drug] 

business”). The judge identified the need to protect the public from future crimes as a 

“major factor” in determining an appropriate sentence and noted that his “initial 

reaction” to Johnson’s presentence investigation report was that he was “a candidate for 

the high end of [the] guidelines.” The judge further noted that after Johnson had 

promised a prior sentencing judge that he would stay away from drugs, he nonetheless 

started drug dealing shortly after being released from prison and while on supervised 
No. 18-1326 Page 3

release. After telling Johnson that he still has “a lot of life ahead” if he could “turn it 

around,” the judge imposed a mid-range sentence.

Johnson has moved to have a new attorney appointed so that he can pursue an 

ineffective-assistance claim against his appellate counsel. Any ineffective-assistance 

claim, however, is best presented to the district court in a petition for collateral review, 

see 28 U.S.C. § 2255(a), so that a more thorough record can be developed. See Massaro v. 

United States, 538 U.S. 500, 504–05 (2003); United States v. Smith, 771 F.3d 1045, 1047 

(7th Cir. 2014).

For these reasons, we GRANT counsel’s motion to withdraw, DISMISS the 

appeal, and DENY Johnson’s motion to have new counsel appointed.