# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 10, 2014

Decided June 27, 2014

Before

RICHARD D. CUDAHY, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

WILLIAM T. LAWRENCE, District Judge *

No



### . 13

‐ 1777

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

RASHOD BETHANY,

Defendant

‐ Appellant

. Appeal from the United

States District Court for the

Northern District of Illinois,

Eastern Division.

No. 06 CR 346

Harry D. Leinenweber, Judge

.

ORDER

Rashod Bethany was sentenced to 300 months in prison after pleading

guilty to conspiring to distribute and to possess with intent to distribute fifty

grams or more of a substance containing cocaine base. His appeal challenges

both his conviction and sentence. We affirm.

* Of the Southern District of Indiana, sitting by designation. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 1777 Page 2

I. BACKGROUND

On January 15, 2008, Bethany was charged by a second superseding

indictment with one count of conspiracy to distribute and to possess with intent

to distribute fifty grams or more of a substance containing cocaine base in the

form of crack cocaine, in violation of 21 U.S.C. § 846, and three counts of

distributing fifty grams or more of cocaine base in the form of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). Because Bethany had a previous felony drug

conviction, the Government also filed an enhancement notice under 21 U.S.C.

§ 851.

On January 9, 2009, without the benefit of a written plea agreement, Bethany

agreed to plead guilty to the conspiracy charge. As a concession, the Government

agreed to dismiss the remaining counts. Bethany, however, was very particular

about his admissions during the plea hearing—he admitted only that he

possessed and distributed some amount of cocaine base. Bethany refused to

admit that the substance was in fact crack cocaine or to a specific quantity of

cocaine base. In response, the Government agreed to provide evidence regarding

the amount and type of drug at Bethany’s sentencing hearing.

On December 6, 2010, almost two years after the change of plea hearing, but

before the sentencing hearing, Bethany moved to withdraw his guilty plea. He

argued that the district court failed to discuss or even mention the Federal

Sentencing Guidelines or the 18 U.S.C. § 3553 factors during the Rule 11 plea

colloquy. Thus, according to Bethany, his plea was not knowingly entered. The

court denied his motion on January 24, 2011, and reasoned as follows:

Bethany was very adequately informed of the statutory minimums

he was facing which would be dependent upon the results of the

sentencing hearing to be held at a later date. He was also informed

of the maximum sentence he would be facing. He was not told

about the sentencing guidelines but the court would be hard

pressed to give any kind of estimate because the quantity of drugs

was not discussed and there was no agreement as to whether or not

the case involved crack cocaine. Consequently, the best estimate of

the sentencing he would be facing was anywhere between the

minimum and maximum.

It is clear that Bethany had been informed sufficiently about the

consequences of his plea to have made an intelligent, voluntary and

knowing decision as to whether to plead guilty.

. . . Consequently,

the failure to abide by all of the provisions of Rule 11 did not

involve substantial rights.No. 13

‐ 1777 Page 3

Mem. Op. and Order, Dkt. No. 211 at 6

‐ 7.

Immediately thereafter, Bethany filed a motion for reconsideration. This

time, he also argued that the district court further violated Rule 11, and thus

rendered his plea involuntary, because it did not, as the rule requires, inform him

that the statements he made under oath could be used against him in a

prosecution for perjury. The motion for reconsideration was also denied by the

district court.

On March 21, 2013, the court began a three

‐ day sentencing hearing during

which the Government presented evidence concerning the drug type, the drug

quantity, and several aggravating factors under the Sentencing Guidelines. After

hearing evidence, the court concluded that Bethany was responsible for at least

280 grams of crack cocaine. Thus, he faced a twenty

‐ year mandatory minimum

sentence, 1 and his base offense level was set at 32. Next, the court applied the

following enhancements and adjustments from the 2012 Sentencing Guidelines:

Use of violence/threats § 2D1.1(b)(2) +2 points

Maintaining a drug premises § 2D1.1(b)(12) +2 points

Criminal livelihood § 2D1.1(b)(14)(E) +2 points

Organizer of Conspiracy § 3B1.1(a) +4 points

Obstruction of Justice § 3C1.1 +2 points

Acceptance of Responsibility § 3E1.1(a)

‐ 2 points

Total 42

Based on a criminal history category IV and a total offense level of 42,

Bethany faced a Guidelines range of 360 months to life in prison. The court,

however, deviated downward from the Guidelines and sentenced Bethany to 300

months in prison—within the statutory minimum and maximum.

II. DISCUSSION

On appeal, Bethany argues that the district court erred in three respects: (1)

denying his motion to withdraw his guilty plea and his motion to reconsider; (2)

determining, in light of Alleyne v. United States

, 133 S. Ct. 2151 (2013), that he was

subject to a twenty

‐ year mandatory minimum sentence; and (3) applying several

Sentencing Guideline enhancements in violation of the ex post facto clause.

1 Bethany faced a statutory minimum sentence of ten years. However, due to his prior drug

offense, the minimum sentence was doubled to twenty years.No. 13

‐ 1777 Page 4

A. Guilty Plea and Rule 11 Colloquy

A district court may allow a defendant to withdraw a guilty plea before

sentencing if a defendant can show a “fair and just reason for requesting the

withdrawal.” United States v. Redmond

, 667 F.3d 863, 870 (7th Cir. 2012) (citing

Fed. R. Crim. P. 11(d)(2)(B)). For example, a plea may be withdrawn if it was “not

made voluntarily and knowingly.” United States v. Mays

, 593 F.3d 603, 607 (7th

Cir. 2010). Importantly, “[t]here is no absolute right to withdraw a guilty plea.”

Redmond

, 667 F.3d at 870 (citing United States v. Chavers

, 515 F.3d 722, 724 (7th

Cir. 2008)). Rather, the decision to deny a defendant’s motion to withdraw his

guilty plea “rests within the discretion of the district court” and therefore is

reviewed for an abuse of discretion. Id. at 870 (citing United States v. Cavender

, 228

F.3d 792, 803 (7th Cir. 2000)).

Bethany argues that he should have been allowed to withdraw his guilty

plea because the district court failed to comply with the requirements of Rule 11.

“Rule 11 generally spells out the procedures that a district court must follow

when a defendant wishes to plead guilty.” United States v. Sura

, 511 F.3d 654, 657

(7th Cir. 2007). Among the various topics listed under Rule 11 are the Sentencing

Guidelines. Specifically, “the court must inform the defendant of, and determine

that the defendant understands

. . . the court’s obligation to calculate the

applicable sentencing

‐ guideline range and to consider that range, possible

departures under the Sentencing Guidelines, and other sentencing factors under

18 U.S.C. § 3553(a).” Fed. R. Crim. P. 11(b)(1)(M). However, a literal recitation of

Rule 11 is unnecessary. See United States v. Akinsola

, 105 F.3d 331, 334 (7th Cir.

1997); United States v. Cross

, 57 F.3d 588, 591 (7th Cir. 1995). Indeed, Rule 11 states

that “‘[a] variance from the requirements of th[e] rule is harmless error if it does

not affect substantial rights.’” United States v. Davila

, 133 S. Ct. 2139, 2143 (2013)

(quoting Fed. R. Crim. P. 11(h)). The “harmlessness inquiry naturally should

focus on whether the defendant’s knowledge and comprehension of the full and

correct information would have been likely to affect his willingness to plead

guilty.” United States v. Fernandez

, 205 F.3d 1020, 1024 (7th Cir. 2000) (citations

and quotations omitted).

Bethany argues that the district court’s “failure to inform [him] about either

the existence or necessity of consulting both the sentencing guidelines and § 3553

factors—undeniably two of the most important factors in determining a

defendant’s sentence—cannot be held to ‘substantially comply’ with the

requirements of Rule 11.” Appellant’s Br. at 12. Although the district court erred

in failing to discuss (or even mention) the Sentencing Guidelines and the §

3553(a) factors as Rule 11 requires, the error in this case was harmless.No. 13

‐ 1777 Page 5

Bethany was advised during the change of plea hearing that, assuming the

cocaine base was determined to be crack (which the evidence overwhelmingly

established), he faced a statutory minimum sentence of twenty years and a

statutory maximum sentence of thirty years in prison. 2 Bethany suggests that this

non

‐ specific sentencing range may have led him to underestimate his probable

sentence. He argues:

In the absence of information about the applicable guidelines

range, Mr. Bethany might well conclude that he is just as likely to

get a sentence close to the low end of the applicable statutory range

as a sentence closer to the high end. For example, without any

knowledge about the guidelines, Mr. Bethany could have surmised

that a sentence of 20 years or less was just as likely as a sentence of

30 years. That was not an accurate assessment of Mr. Bethany’s

situation. Under the guidelines found by the district court at

sentencing, Mr. Bethany had an advisory sentencing range of 360

months to life. Hence, a sentence close to the 30

‐ year maximum was

much more likely than a sentence of 20 years or less. Mr. Bethany

had a right to know that before he entered his plea. Without that

knowledge, he was incapable of knowingly and voluntarily

pleading guilty.

Appellant’s Br. at 10. As the Government notes, however, “the fact that a

defendant underestimated his sentence when entering his plea is not a fair and

just reason to permit him to withdraw that guilty plea.” Appellee’s Br. at 35

(quoting Redmond

, 667 F.3d at 872).

More importantly, it is unlikely that a discussion of the Sentencing

Guidelines and the § 3553(a) factors during the change of plea hearing would

have affected Bethany’s willingness to plead guilty. Bethany was aware that he

faced a statutory maximum of thirty years in prison. At the sentencing hearing,

his Guidelines range was determined to be 360 months to life in prison. The

failure to advise him of this range at the change of plea hearing cannot

reasonably be said to have affected his decision to plead guilty, because the judge

could not have sentenced Bethany beyond the statutory maximum of thirty

years. Thus, unless he admitted to additional facts, he already knew that his

sentence would not exceed 360 months. Cf. United States v. Padilla

, 23 F.3d 1220,

1222 (7th Cir. 1994) (“If for instance, the record discloses that a defendant was

2 During the change of plea hearing, Bethany’s counsel specifically clarified as follows: “just so

the parties are clear that if the judge at sentencing was to find that it’s crack that the 20 minimum

kicks in, the maximum still remains 30.” Change of Plea Tr. at 7

‐ 9.No. 13

‐ 1777 Page 6

aware when pleading guilty that the sentencing guidelines would subject him to

a sentence well in excess of any statutory mandatory minimum likely applicable

to his case, the failure to advise him of such minimums during the plea hearing

cannot reasonably be said to have affected his decision to accept the plea.”).

Thus, the district court’s failure to discuss the Sentencing Guidelines and the

§ 3553(a) factors at Bethany’s change of plea hearing was harmless.

Rule 11 also requires that “the court must inform the defendant of, and

determine that the defendant understands

. . . the government’s right, in a

prosecution for perjury or false statement, to use against the defendant any

statement that the defendant gives under oath.” Fed. R. Crim. P. 11(b)(1)(A).

Because the district court failed to inform Bethany of this fact, he further argues

that his plea was involuntary.

We previously considered and rejected this argument in United States v.

Graves

, 98 F.3d 258 (7th Cir. 1996).

As there is no current or prospective prosecution of [the defendant]

for perjury, the violation of Rule 11

. . . was harmless.

. . . If the

violation of the rule weren’t harmless, because there was a prospect

of a perjury trial, still the proper sanction would be exclusion of the

statement from that trial rather than throwing out the guilty plea.

Id. at 259. Likewise, the district court’s failure to recite Rule 11(b)(1)(A) during

Bethany’s plea colloquy was harmless.

Based on the foregoing, the district court did not abuse its discretion in

denying Bethany’s motion to withdraw his guilty plea. The court also did not err

in denying Bethany’s motion to reconsider.

B. Alleyne Error

Bethany next argues that, in light of Alleyne

, the district court erred in

determining that he was subject to a twenty

‐ year mandatory minimum sentence.

In Alleyne

, the Supreme Court held that “any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.” Alleyne

, 133 S. Ct.

at 2155. In other words, “a district court errs when it makes a judicial finding of

fact that increases the statutory mandatory minimum sentence facing a

defendant.”

In this case, the district court determined that Bethany faced a statutory

minimum of twenty years in prison. Bethany, however, was sentenced to twenty

‐

five years in prison (which was a downward departure from the Guidelines

range), and the statutory minimum had absolutely no effect on his ultimateNo. 13

‐ 1777 Page 7

sentence. Thus, there was no error and Alleyne is inapplicable to Bethany’s

sentence.

C. Sentencing Guidelines

As his third and final ground for appeal, Bethany argues that the district

court violated the ex post facto clause and thus erred in applying a two

‐ level

enhancement for maintaining a stash house/drug premises, and a two

‐ level

enhancement for using violence or the threat of violence, because those

enhancements were not in effect when he committed his crime. 3 In Peugh v.

United States

, 133 S. Ct. 2072 (2013), the Supreme Court held that application of

Sentencing Guidelines that came into effect after the commission of an offense

violates the ex post facto clause if it results in a higher Guidelines range.

Bethany seems to argue that he is entitled to pick and choose between

portions of the 2005 Sentencing Guidelines and the 2012 Sentencing Guidelines.

In other words, Bethany asserts that the district court should have applied the

individual guidelines from each manual that were most beneficial to him.

However, that is not the law of this Circuit—the district court must apply either

the entire 2005 manual or the entire 2012 manual. See, e.g

., United States v.

Hallahan

, 744 F.3d 497, 513

‐ 14 (7th Cir. 2014) (discussing ex post facto clause and

one

‐ book rule). Bethany, however, has not argued for the application of the

(entire) 2005 manual, let alone contended that he would have been better off

under it. Thus, Bethany fails to show that that the district court committed

reversible error under Peugh

.

III. CONCLUSION

Bethany’s conviction and sentence are AFFIRMED in all respects.

3 Interestingly, the district court also imposed a two

‐ point enhancement for criminal livelihood

under U.S.S.G. § 2D1.1(b)(14)(E). This provision also was not in effect when Bethany committed

his crimes. Bethany, however, did not raise the ex post facto argument as it relates to this

enhancement in the district court or in the instant appeal.