United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 5, 2013

Decided April 5, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12-2534

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EZRA MIRANDA,

Defendant-Appellant.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09-CR-95-BBC-01

Barbara B. Crabb,

Judge.

O R D E R

Ezra Miranda sold 4.5 ounces of cocaine to a confidential informant in a series of

controlled buys. He pleaded guilty to conspiring to distribute cocaine, 21 U.S.C. § 841(a)(1);

21 U.S.C. § 846. The district court adopted the probation officer’s guidelines calculations,

which yielded a sentence of 151 to 188 months’ imprisonment based in part on Miranda’s

status a career offender due to past convictions for battery and manufacturing or delivering

THC, see U.S.S.G. § 4B1.1(a). The court sentenced Miranda to only 120 months’

imprisonment, however, because these convictions were “less egregious than the usual

conduct of persons sentenced as career offenders.” Miranda filed a notice of appeal, but his

lawyer has concluded that the appeal is frivolous and moves to withdraw. See Anders v.

California, 386 U.S. 738, 744 (1967). Miranda opposes his lawyer’s motion. See CIR. R. 51(b).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 12-2534 Page 2

We confine our review to the potential issues identified in counsel’s facially adequate brief

and Miranda’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

Counsel first considers whether Miranda could challenge the adequacy of his plea

colloquy or the voluntariness of his guilty plea, but it is unclear whether counsel has

discussed such a challenge with Miranda. An attorney should not even explore arguments

under Federal Rule of Criminal Procedure 11 in an Anders brief without confirming that the

client wants to withdraw his guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th

Cir. 2002). Nevertheless, we need not reject counsel’s Anders submission because the

information included in his brief, Miranda’s response, and our review of the record satisfies

us that a challenge to the plea would be frivolous. See United States v. Konczak, 683 F.3d 348,

349 (7th Cir. 2012). Counsel identifies no deficiency in the plea colloquy, and our review of

the transcript confirms that the district court substantially complied with the requirements

of Rule 11.

Counsel does consider whether Miranda could challenge his 120-month sentence as

unreasonable. As counsel recognizes, we would presume that Miranda’s below-guidelines

sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v.

Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and counsel identifies no reason to disturb that

presumption. The district court adequately discussed the relevant sentencing factors under

18 U.S.C. § 3553(a), noting that Miranda had been undeterred by his two state sentences but

acknowledging that his crimes were less serious than those of other career offenders.

Counsel and Miranda also consider challenging Miranda’s classification as a career

offender. Miranda contends that the classification was unfounded because the battery

charge carried a maximum punishment of only 9 months. As counsel notes, however, the

battery charge carried a maximum penalty of greater than one year because it was charged

as a violation of Wisconsin’s habitual criminality statute. See WIS. STAT. § 939.62(1)(a);

United States v. Bissonette, 281 F.3d 645, 647 (7th Cir. 2002). Miranda also urges that the

THC-distribution conviction should have been expunged after he completed probation. But

his lawyer conceded at sentencing that Miranda “is a career offender because he does have

one drug sale predicate,” and thus Miranda waived any argument that he does not have

two felony convictions for drug crimes or crimes of violence. See United States v. Staples, 202

F.3d 992, 995 (7th Cir. 2000).

Miranda also proposes arguing that the court incorrectly found that his relevant

conduct involved almost 2 kilograms of cocaine. This argument would be frivolous,

however, because as a career offender Miranda’s sentence was based on the statutory

maximum for his offense of conviction, not the drug-quantity provisions of U.S.S.G.

§ 2D1.1. See U.S.S.G. § 4B1.1(b); United States v. Redmond, 667 F.3d 863, 872 (7th Cir. 2012).
No. 12-2534 Page 3

Counsel finally considers whether Miranda could raise a claim about the

performance of his trial counsel but correctly concludes that any such claim would best be

presented on collateral review, where the necessary record may be developed. See Massaro

v. United States, 538 U.S. 500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58 (7th

Cir. 2005).

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.