# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 26, 2015

Decided June 10, 2015

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 14

‐ 3118

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

SHERRI WILSON,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 13 CR 7

‐ 1

Virginia M. Kendall,

J udge

.

O R D E R

Sherri Wilson robbed two banks in a four

‐ month span, committing the second

robbery while out on bond for the first. She pleaded no contest to two counts of bank

robbery, see 18 U.S.C. § 2113(a), and was sentenced below the guidelines range to 36

months’ imprisonment. Wilson filed a notice of appeal, but her appointed lawyer asserts

that the appeal is frivolous and seeks to withdraw under Anders v. California

, 386 U.S. 738

(1967). Wilson opposes that motion, see C IR

. R. 51(b), and also requests substitute

counsel. Counsel has submitted a brief that explains the nature of this case and

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

the analysis in counsel’s brief appears to be thorough, we limit our discussion to the NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 14

‐ 3118 Page 2

issues identified in that brief and in Wilson’s response. See United States v. Bey, 748 F.3d

774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

In December 2012 Wilson, then 55, robbed a TCF Bank of $282 on Chicago’s south

side and was arrested a month later. After an initial appearance before a magistrate

judge, she was admonished about the terms of bond and released from custody. Wilson

later moved to suppress statements that she had made to the FBI, arguing that her

thinking at the time had been impaired by her medical conditions (including diabetes)

and prescription medicines. But in April 2013, before the motion could be heard, she held

up another south

‐ side TCF Bank of $80 and was promptly arrested a block or two away.

After a psychiatric examination Wilson was found competent to proceed, and she

agreed to plead “no contest” to a superseding indictment that incorporated both

robberies. See North Carolina v. Alford

, 400 U.S. 25, 37 (1970) (explaining that a defendant

who maintains his innocence may nevertheless plead guilty in hopes of obtaining a

lighter sentence); Bey

, 748 F.3d at 775. At sentencing, the district judge acknowledged the

irrationality of Wilson’s actions in robbing two banks, as well as her past medical and

mental health problems (including self

‐ reported suicide attempts), but concluded that the

seriousness of the offenses and Wilson’s risk of recidivism supported a below

‐ guidelines

sentence of 36 months on each count, to run concurrently.

Counsel begins by considering whether Wilson could challenge the voluntariness

of her no

‐ contest plea but neglects to say whether he consulted his client about this

possibility. See United States v. Konczak

, 683 F.3d 348, 349 (7th Cir. 2012); United States v.

Knox

, 287 F.3d 667, 670–71 (7th Cir. 2002). And Wilson does not say in her Rule 51(b)

response whether she has discussed withdrawing her plea with counsel (though she

does assert that she is innocent of both bank robberies). These omissions do not require

that we deny this Anders submission, however, because our review of the record

persuades us that the district court substantially complied with Federal Rule of Criminal

Procedure 11 when accepting the plea. Wilson did not move to withdraw her plea in the

district court, and thus we would review the plea colloquy only for plain error.

See United States v. Vonn

, 535 U.S. 55, 59, 62–63 (2002); United States v. Davenport

, 719 F.3d

616, 618 (7th Cir. 2013). The court advised Wilson of her trial rights and the

constitutional rights she was waiving by pleading guilty and forgoing a trial, F ED

. R.

C RIM

. P. 11(b)(1)(B)–(F), and ensured that she understood the charges against her and the

penalties she faced, id. 11(b)(1)(G)–(M). The government proffered a factual basis for the

plea, which Wilson acknowledged the government could prove at trial. Id. 11(b)(3).No. 14

‐ 3118 Page 3

As counsel points out, however, the court did neglect to ask Wilson whether the

plea “result[ed] from force, threats, or promises,” id. 11(b)(2), and the record does not

reflect the nature of pre

‐ plea discussions that took place between the government and

Wilson. But counsel properly concludes that we would not regard the court’s oversight

as plain error because nothing in the record suggests that Wilson pleaded no contest

involuntarily, that she was promised anything in return for her plea, or that anyone used

threats or force to induce the plea. Indeed Wilson’s own lawyer (who represented her in

the district court) states that the court “took careful steps in making its determination

regarding defendant’s ability to make [an] informed and intelligent decision to plead

nolo contendere.” Though Wilson asserts in her Rule 51(b) response that counsel told her

“over and over” that she would be “going home,” the record does not reflect any

misunderstandings between Wilson and her attorney about the penalties she faced. She

was present when counsel requested that she be placed in a treatment center for her

sentence, as opposed to being released on probation. Moreover, she did not seek to

withdraw her plea after either hearing this recommendation or being told that she faced

a sentence of up to 40 years in prison and a guidelines range of 57 to 71 months’

imprisonment. See United States v. Todd

, 521 F.3d 891, 896–97 (8th Cir. 2008) (omissions in

plea colloquy did not affect defendant’s substantial rights when he neither objected to

them at his sentencing hearing nor sought to withdraw his guilty plea); United States v.

Vaval

, 404 F.3d 144, 152 (2d Cir. 2005) (plain

‐ error standard not met when “defendant,

before sentencing, learns of information erroneously omitted in violation of Rule 11 but

fails to attempt to withdraw” plea).

Counsel also considers whether Wilson could challenge her sentence and

properly concludes that such a challenge would be frivolous. Wilson’s 36

‐ month

sentence is below the low end of her calculated guidelines range. Counsel gives no

reason to disregard the presumption that this below

‐ guidelines sentence is reasonable,

see United States v. Womack

, 732 F.3d 745, 747 (7th Cir. 2013); United States v. Liddell

, 543

F.3d 877, 885 (7th Cir. 2008), and we see none. The district court adequately considered

the relevant 18 U.S.C. § 3553(a) factors, including Wilson’s personal characteristics

(noting her advancing age and serious mental

‐ health and medical conditions, including

diabetes and a history of seizures), the need to impose a sentence that reflected the

seriousness of the offense (stating that bank robberies are dangerous and frightening for

tellers and the public), and the need to protect the public from future crimes committed

by Wilson (noting that she committed her second bank robbery while out on bond for

the first).No. 14

‐ 3118 Page 4

In her Rule 51(b) submission, Wilson raises two issues. First she maintains her

innocence, but claims of innocence underlie all Alford pleas. When a defendant pleads

guilty or no contest but protests her innocence, the trial court ensures that the plea is

intelligent by determining that there is a factual basis for the plea, as was done here.

See Alford

, 400 U.S. at 37; Bey

, 748 F.3d at 775. Wilson also asserts that her counsel is

“incompetent and prejudiced.” We see no indication of that, but to the extent Wilson

wishes to challenge her counsel’s ineffectiveness, a challenge on that basis is best left for

collateral review, through which a record can 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).

We do note one error by the district court: The written judgment describes her

plea as “guilty” rather than “nolo contendere.” But this mistake does not require that we

deny counsel’s motion to withdraw and order briefing. Clerical errors in a written

judgment can be fixed at any time on a motion to the district court. See F ED

. R. C RIM

. P.

36; United States v. Anobah

, 734 F.3d 733, 739 (7th Cir. 2013).

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED. Wilson’s motion for substitution of counsel is DISMISSED as moot.