In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2887

United States of America,

Plaintiff-Appellee,

v.

Darin D. Gilliam,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. IP 99-153-CR-01-B/F--Sarah Evans Barker, Judge.

Argued April 19, 2001--Decided June 28, 2001

 Before Flaum, Chief Judge, and Harlington

Wood, Jr., and Rovner, Circuit Judges.

 Flaum, Chief Judge. After being

indicted on drug conspiracy and

possession charges, Darin Gilliam decided

to enter into a plea agreement with the

government. Gilliam’s attorney informed

his client that, pursuant to the

agreement, Gilliam’s sentence likely

would be in the range of eight years.

However, Gilliam was advised that his

prior criminal record could cause his

sentence to be lengthened. Unbeknownst to

the government and defense counsel at the

time the agreement was drafted, Gilliam

did have an extensive criminal record--

one, in fact, that qualified him for

career offender status. When that

information was revealed, Gilliam was

informed that, as a career offender, his

sentence would be in the range of twenty

two years. Nevertheless, Gilliam stated

his desire to be held to the terms of the

agreement, and entered his plea of

guilty. Gilliam was sentenced to 262

months incarceration and now appeals,

arguing that his plea was involuntary and

that the indictment upon which he was

charged was deficient. For the reasons

stated herein, we affirm the conviction

and sentence imposed by district court.

I. BACKGROUND
 Darin Gilliam first came to the

attention of Indianapolis, Indiana, drug

enforcement agents when a client of his,

Maceo Wells, was arrested on drug

conspiracy charges. Wells, who decided to

cooperate with the authorities in hopes

of reducing his sentence, named Gilliam

as his cocaine supplier, and agreed to

set up a controlled purchase from

Gilliam. Arrangements were made for

Gilliam, along with his accomplice,

Arthur Brown, to transport one and onehalf kilograms of cocaine from Los

Angeles, California, to Indianapolis for

sale to Wells and another individual.

Shortly after Gilliam and Brown’s arrival

in Indianapolis, a search warrant was

executed for Gilliam’s hotel room. Agents

conducting the search recovered the one

and one-half kilograms of cocaine, as

well as various incriminating documents.

Gilliam and Brown were subsequently

arrested.

 On December 7, 1999, a grand jury in the

Southern District of Indiana charged

Gilliam with a two-count indictment.

Count One stated that from October 25,

1999 through November 9, 1999, Gilliam

conspired to possess with intent to

distribute, and to distribute, cocaine,

in violation of 21 U.S.C. sec.sec.

841(a)(1) and 846. Count Two alleged that

on November 9, 1999, Gilliam knowingly

possessed with the intent to distribute

approximately one and one-half kilograms

of cocaine, in violation of 21 U.S.C.

sec. 841(a)(1) and 18 U.S.C. sec. 2.

 Rather than face trial, Gilliam decided

to cooperate with the government. On

February 23, 2000, a petition to enter a

plea of guilty was filed. According to

the attached plea agreement, the

defendant would plead guilty to Count One

of the indictment. Gilliam acknowledged

in the agreement that the applicable

statutory penalty was a minimum sentence

of ten years, and a maximum of life

imprisonment. Gilliam further noted that

"the final determination concerning the

applicable guideline calculation,

criminal history category, and sentencing

guideline range [would] be made by the

Court." Gilliam also understood that if

the court decided to impose a sentence

higher or lower than any recommendation

of either party, or determined that a

different sentencing guideline range

applied in this case, or decided to
depart from the otherwise applicable

sentencing guideline range pursuant to 18

U.S.C. sec. 3553(b), then Gilliam would

not be permitted to withdraw his plea of

guilty. In exchange for Gilliam’s plea

and agreement to cooperate with the

government concerning Wells’ case, the

government agreed to move to dismiss

Count Two of the indictment, and to

request a reduction of up to three levels

for sentencing purposes for Gilliam’s

future cooperation./1 

 According to the agreement, the base

offense level for Gilliam’s drug

conspiracy was set at 32. Two points were

to be added because Gilliam supervised

Brown, and three points deducted for

Gilliam’s acceptance of responsibility.

Additionally, assuming Gilliam continued

to provide the government with

substantial assistance, the government

would request the aforementioned three

level reduction. Thus, assuming, as

Gilliam’s attorney had done at the time

of the negotiations, that Gilliam’s

criminal history category was IV, Gilliam

could have qualified for a sentencing

range of 110 to 137 months. Gilliam’s

attorney had explained to his client

that, in his best judgment, Gilliam would

receive a sentence of approximately eight

years. However, counsel cautioned his

client that Gilliam’s past criminal

history could enhance that sentence. At

the time that Gilliam filed his

agreement, neither the government nor his

attorney was aware of the extent of

Gilliam’s criminal history.

 On April 20, 2000, Gilliam’s criminal

history, along with the ramifications of

that history for sentencing purposes,

were disclosed to him in his Presentence

Investigation Report ("PSR"). The report

noted that among the myriad of prior runins Gilliam had with the law were a 1988

conviction for assault with a deadly

weapon with great bodily injury and a

1990 conviction for assault with a deadly

weapon. Because Gilliam had been

convicted of two prior felonies that were

crimes of violence and because his

present conviction was a controlled

substance offense, the Sentencing

Guidelines classified Gilliam as a career

offender. See U.S.S.G. sec. 4B1.1. The

PSR noted that, as a career offender,

Gilliam’s criminal history category

should be set at VI. Furthermore, because
Gilliam’s present offense carried

astatutory maximum penalty of life

imprisonment, his offense level was to be

set at 37. See id. Thus, deducting three

points for Gilliam’s acceptance of

responsibility, his Guidelines range was

262 to 327 months of imprisonment. 

 Almost two months later, on July 13,

2000, Gilliam appeared before the

district court for his change of plea and

sentencing hearing. At that hearing,

Gilliam informed the court that while he

could not read or write very well, his

counsel had read to him all the relevant

documents in his matter, including the

indictment, the plea agreement and the

PSR. When the district court questioned

Gilliam, he showed unease regarding the

possible length of his sentence. He

informed the court that at the time he

entered into the written agreement, he

was under the impression from his

attorney that his sentence would be in

the range of eight years. The court,

after questioning Gilliam’s attorney,

explained to the defendant that his

counsel’s estimate of an eight year

sentence was "a good judgment" in light

of the facts known to him at that time

the agreement was entered into. However,

the court stated that with the additional

information of Gilliam’s past criminal

record, his sentencing range was closer

to 21 years. Additionally, the court

explained to Gilliam that if he wished

not to enter his guilty plea, he could

proceed to trial and force the government

to prove his guilt beyond a reasonable

doubt. Gilliam acknowledged that his

attorney had provided him with similar

information, and stated that he did not

wish for the court to read the PSR aloud

to him. Thereafter, Gilliam informed the

court that he still wished to enter his

plea of guilty. After hearing testimony

regarding the facts surrounding Gilliam’s

arrest from drug enforcement agent Baker,

the court asked Gilliam for his plea. The

defendant plead guilty and was sentenced

to 262 months imprisonment, followed by

five years of supervised release.

 Gilliam now appeals his sentence,

arguing primarily that his plea was not

knowingly and voluntarily entered into.

Additionally, Gilliam asserts that his

plea of guilty was entered under a

defective indictment and that the

Sentencing Guidelines mandate that he
receive a lesser sentence.

II. DISCUSSION

A. Knowing and Voluntary Nature of Gilliam’s

Plea

 Gilliam’s initial assertion on appeal is

that, as a result of the government and

defense counsel’s failure to evaluate his

criminal record prior to entering into a

plea agreement, Gilliam’s plea was not

knowingly and intelligently made.

According to the defendant, "the

[g]overnment’s negligence, and that of

defense counsel in not pursuing this

information, put the [d]efendant into a

position of accepting a plea on one set

of guidelines and being sentenced on

something greater." Gilliam further

contends that the district court’s

decision to have the plea hearing and the

sentencing on the same day subjected him

to a conflict that he could not overcome

in the time frame given. 

 As the Supreme Court long ago noted "[a]

defendant who enters [a guilty] plea

simultaneously waives several

constitutional rights, including his

privilege against compulsory

self-incrimination, his right to trial by

jury, and his right to confront his

accusers. For this waiver to be valid

under the Due Process Clause, it must be

an intentional relinquishment or

abandonment of a known right or

privilege." McCarthy v. United States,

394 U.S. 459, 466 (1969) (internal

citation omitted). If the plea is not

voluntary and knowing, then it violates

due process, and is thus void. "Moreover,

because a guilty plea is an admission of

all the elements of a formal criminal

charge, it cannot be truly voluntary

unless the defendant possesses an

understanding of the law in relation to

the facts." Id.

 We have stated that when a defendant

does not move, while still before the

district court, to withdraw that plea of

guilt, the demanding standard of plain

error must guide our review. See United

States v. Driver, 242 F.3d 767, 769 (7th

Cir. 2001); United States v. Hicks, 129

F.3d 376, 378 (7th Cir. 1997); see also

United States v. Olano, 507 U.S. 725, 736

(1993). Thus, because Gilliam did not

previously challenge the knowing and
voluntary nature of his plea, in order to

vacate that plea, we must find that (1)

an error has occurred, (2) it was

"plain," (3) it affected a substantial

right of the defendant, and (4) it

seriously affected the fairness,

integrity, or public reputation of the

judicial proceedings. See Johnson v.

United States, 520 U.S. 461, 466-67

(1997). 

 We conclude that Gilliam cannot

establish the first requirement necessary

for finding of plain error; namely, that

the district court committed any error.

It is not in dispute that, at the time he

entered into a plea agreement with the

government, Gilliam believed he would

receive a sentence of approximately eight

years. Furthermore, it is obvious that

the sentence imposed by the district

court was grossly larger than Gilliam had

understood it would be at the time he

agreed to plea guilty. However, an

attorney’s prediction or representation

regarding the length of a client’s

sentence, if later proven to be

inaccurate, will not necessarily render

the client’s plea unwitting or

involuntary. See Bridgeman v. United

States, 229 F.3d 589, 592 (7th Cir.

2000). 

 Gilliam glosses over the fact that he

did not learn the impact the Guidelines

would have on his sentence on the date of

his sentencing. Gilliam received the PSR

on April 20. That document made patent

that, despite any assertion by his

attorney, Gilliam’s conviction would

require that he be treated as a career

offender. The PSR noted that, according

to the provisions of the Sentencing

Guidelines, Gilliam should receive a

sentence of 262 to 327 months. By

Gilliam’s own admission, between April 20

and July 13, the date sentencing was

imposed, Gilliam had the PSR read and

explained to him numerous times.

Furthermore, at the time Gilliam did

enter his plea of guilt, the district

court clearly explained the consequences

of the career offender status and the

impact it would have if he agreed to

plea. Gilliam acknowledged that he was

aware of those ramifications, and that he

was voluntarily choosing to plead guilty.

A defendant’s assertions as to the

voluntary nature of his plea during a

change of plea hearing are presumed to be
truthful. See Bridgeman, 229 F.3d at 592.

 In examining whether a plea was

knowingly and voluntarily entered, we

inspect the circumstances surrounding the

plea, in order to determine whether the

defendant was informed of his rights and

understood the consequences of his plea.

See United States v. Godwin, 202 F.3d

969, 971 (7th Cir. 2000). Gilliam was

free, from the moment he signed the plea

agreement, to the day of the change of

plea hearing, to revoke his plea

agreement. The agreement did not become

binding on him until the moment he

informed the court that he wished to hold

by the agreement. The court, recognizing

Gilliam’s prior misunderstanding, gave

the defendant multiple opportunities to

withdraw his plea. Gilliam chose not to. 

 Had Gilliam, at the moment he entered

his plea, been unaware of the impact the

Guidelines would have on his sentence,

that lack of knowledge would not require

the vacating of his plea. "Generally, 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." United States

v. Knorr, 942 F.2d 1217, 1220 (7th Cir.

1991). Certainly, under these

circumstances, where any underestimation

was corrected prior to sentencing, there

is no reason to vacate the guilty plea.

Thus, we find that Gilliam’s sentence was

knowingly and voluntarily entered into. 

B. Deficiencies of the Indictment

 Gilliam’s second contention on appeal is

that the indictment upon which he pled

guilty was defective. Count I of the

indictment charged Gilliam with violating

21 U.S.C. sec.sec. 841(a)(1) and 846.

That indictment did not identify the

exact quantity of drugs to be used

against Gilliam for purposes of charging

factors. According to Gilliam, the

district court’s decision to sentence him

to a term greater than the statutory

maximum set forth in sec. 841(b)(1)(C)

thus resulted in a violation of the

Supreme Court’s decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000)./2

 Because Gilliam did not raise this

Apprendi claim at the time he was

sentenced, our review is only for plain

error. See Nance, 236 F.3d at 824. As we
noted above, this means we must determine

(1) whether there was error at all, (2)

if so, whether it was plain, (3) whether

the error affected Gilliam’s substantial

rights, and (4) whether it seriously

affected the fairness, integrity, or

public reputation of the proceedings.

Johnson, 520 U.S. at 466-67. As with most

unpreserved Apprendi claims presented to

this court, Gilliam fails to establish

the fourth prong of the plain-error test.

See United States v. Robinson, 250 F.3d

527, 529 (7th Cir. 2001). Thus, we

proceed to examine whether the

indictment’s failure to state the

relevant drug quantity affects the

fairness, integrity, or public reputation

of the judicial proceedings.

 When applying the fourth prong of the

plain error test to Apprendi cases, we

ask whether "it is clear beyond a

reasonable doubt that a rational jury

would have found the defendant guilty

absent the error." Nance, 236 F.3d at 825

(internal citation omitted). In practical

terms, we analyze whether there was

overwhelming evidence that seven and a

half to nine kilograms of cocaine was

involved in Gilliam’s conspiracy. As in

Robinson and United States v. Patterson,

241 F.3d 912 (7th Cir. 2001), the

evidence surrounding Gilliam’s charge is

overwhelming. At no point during the

proceedings has Gilliam asserted that

less than seven and one half to nine

kilograms of cocaine were involved in his

conspiracy. Gilliam acknowledged as much

when he agreed to a base level of 32 in

his plea agreement. Additionally, Gilliam

did not challenge the amount of seven and

a half to nine, as specifically contained

in the PSR. At Gilliam’s change of plea

hearing, agent Baker testified that

Gilliam, by virtue of multiple trips from

Los Angeles to Indianapolis, had

transported seven and a half to nine

kilograms of cocaine. After Baker had

completed his testimony, Gilliam

confirmed the veracity of Baker’s

statements. Finally, we note that the

plea agreement, the PSR, and the district

court, specified that the statutory

sentence for a violation of Count I of

the indictment was a minimum of ten years

and a maximum of life imprisonment.

Gilliam’s sentence of 262 months was well

within that range. Under these

circumstances, we believe that the

indictments’s failure to state the
relevant drug quantity cannot be said to

have affected the fairness, integrity, or

public reputation of the judicial

proceedings.

 We note in passing that Gilliam likewise

maintains that Count II of the indictment

was deficient. Specifically, Gilliam

asserts that while he was charged in

Count II with violating 21 U.S.C. sec.

841(a)(1) and 18 U.S.C. sec. 2, the

indictment fails to incorporate any

language of willfulness or aiding and

abetting, as contained in 18 U.S.C. sec.

2. Perhaps we would look more favorably

upon Gilliam’s challenge were it not the

fact that Count II of the indictment was

dismissed pursuant to the agreement

between Gilliam and the government.

However, as the Count was dismissed,

Gilliam cannot challenge a deficiency

contained therein, or earnestly assert

that he was harmed in any way by the

failure of the indictment to contain the

language at issue. 

C. Application of the Sentencing Guidelines

 Besides raising an Apprendi challenge

based on the failure of the indictment to

allege the specific quantity of drugs at

issue in this case, Gilliam presents an

issue relating to the interplay between

Apprendi and the appropriate calculations

under the career offender guideline,

U.S.S.G. sec. 4B1.1. As the plea

agreement and the PSR put forth,

Gilliam’s original base level for

purposes of his conspiracy charge was set

at 32. However, according to sec. 4B1.1,

if a defendant has two prior qualifying

convictions, and his present conviction

likewise meets the standards set forth in

the section, then the individual is

considered a career offender. For career

offenders, that section of the Guidelines

sets a new offense level based upon the

"offense statutory maximum," defined as

"the maximum term of imprisonment

authorized for the offense of

conviction." U.S.S.G. sec. 4B1.1 at

Application Note 2. Career offenders are

also automatically considered to have a

criminal history category of VI.

Throughout these proceedings, it was

assumed that the offense statutory

maximum for the offense charged in Count

I of Gilliam’s indictment was life

imprisonment. Such a penalty is

authorized for a conviction under 21
U.S.C. sec. 841(b)(1)(A)(ii)(II), the

penalty provision applicable to a

conviction under sec. 841 involving five

or more kilograms of cocaine. Because of

Gilliam’s prior convictions, he was

considered a career offender. Under the

table contained in U.S.S.G. sec. 4B1.1,

the offense level applicable to a

conviction for a crime with an offense

statutory maximum of life imprisonment is

37. Gilliam asserts that, because the

indictment failed to allege drug

quantity, the maximum sentence he was

entitled to receive was a term of twenty

years, in accordance with sec.

841(b)(1)(C). According to Guideline sec.

4B1.1, if the offense statutory maximum

for a conviction is 20 years the new base

level is set at 32. Thus, according to

Gilliam, had the court applied the career

offender guideline to an offense

statutory maximum of twenty years instead

of life, the offense level would have

been 32 instead of 37. 

 Generally, Apprendi does not require

facts pertinent to application of the

Sentencing Guidelines to be determined

under an elevated burden of persuasion.

See Brannigan v. United States, 249 F.3d

584, 587 (7th Cir. 2001). Rather, "it

holds only that circumstances affecting

the statutory maximum punishment must be

established beyond a reasonable doubt to

the satisfaction of the trier of fact."

Id. However, this is one instance where

Apprendi is applicable to a determination

made in accordance with the Sentencing

Guidelines. This is because U.S.S.G sec.

4B1.1 makes the "offense statutory

maximum" the determinative factor in

calculating a sentence under the career

offender guideline. Therefore, the rule

set forth in Apprendi was implicated when

the court relied upon an indictment

listing no drug quantity, and only

referencing sec. 841(a)(1), in setting

the offense statutory maximum for career

offender purposes at life imprisonment.

Thus, while at first blush, Gilliam

appears to be presenting an intricate

sentencing argument, at its essence,

Gilliam is resubmitting his previous

Apprendi challenge under a different

name.

 Though this Apprendi contention is more

complex than Gilliam’s previous argument,

nonetheless, the same standard of review

is applied. Because Gilliam is raising
this Apprendi claim for the first time on

appeal, Gilliam must once again overcome

the hurdle that plain error review

creates for him./3 See Nance, 236 F.3d

at 824. While we recognize that Apprendi

is properly implicated by these facts, as

above, we do not believe that the

district court’s decision seriously

affected the fairness, integrity, or

public reputation of the judicial

proceedings. See United States v. Saya,

247 F.3d 929, 940-42 (9th Cir. 2001)

(finding that applying an incorrect

offense statutory maximum for career

offender purposes implicates Apprendi,

but that nonetheless, plain error review

still applies). As stated above, at no

point during the proceedings did Gilliam

ever believe the statutory maximum

penalty for Count I was anything other

than life imprisonment. Furthermore,

though we need not rehash the facts of

this case, we are confident that the

testimony of both agent Baker and Gilliam

overwhelmingly established that Gilliam

had dealt in a quantity of drugs

sufficient to set his statutory offense

maximum at life imprisonment. As such,

the application of that maximum for

career offender level purposes does not

require that we vacate Gilliam’s

sentence. 

D. Ineffective Assistance of Counsel

 Before concluding, there is one final

issue that we must touch upon. In his

written submissions to this Court, Gilli

am claimed that his trial counsel had

rendered ineffective assistance by (1)

failing to identify Gilliam’s prior

criminal history before negotiating the

plea agreement, and (2) advising his

client to accept the plea agreement on

erroneous information. Certainly, Gilliam

can raise an ineffective assistance of

counsel claim on direct appeal. However,

a decision to do so means that our

inquiry would be confined to the facts

that appear in the record as it now

stands. See Godwin, 202 F.3d at 973. As

we have noted, that is "a limitation that

almost invariably dooms these claims when

they are raised on direct appeal." Id.

When augmentation of the record is

required, 28 U.S.C. sec. 2255 is the

proper avenue for raising

ineffective-assistance contentions. See

Hugi v. United States, 164 F.3d 378, 381

(7th Cir. 1999). Recognizing that his
ineffective assistance claims would be

benefitted by evidence not presently

contained in the record, at oral

argument, Gilliam requested to withdraw

these claims, thereby preserving them for

a habeas proceeding. Thus, we will not

examine the merits of those claims. See

United States v. Alcantar, 83 F.3d 185,

191 (7th Cir. 1996).

 

III. CONCLUSION

 For the foregoing reasons, we Affirm the

conviction and sentence imposed by the

district court.

FOOTNOTES

/1 Pursuant to the agreement, Gilliam remained free

to argue for further departures.

/2 In Apprendi, the Supreme Court held that "[o]ther

than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt."

530 U.S. at 490. The implication of Apprendi for

defendants charged with drug offenses under 21

U.S.C. sec. 841(a) is that they may not be

subjected to a statutorily enhanced sentence

based on drug type and quantity, as provided in

sec. 841(b), without those elements being charged

in the indictment and proven beyond a reasonable

doubt. See United States v. Nance, 236 F.3d 820,

825 (7th Cir. 2000). 

/3 Perhaps in an effort to avoid the stumbling block

that plain error review poses to Apprendi claims,

Gilliam attempts to recharacterize his argument

as a pure sentencing issue. That restatement does

not benefit Gilliam for two reasons. First,

pursuant to Gilliam’s plea agreement, if we

consider this issue a straightforward sentencing

issue, then Gilliam has forfeited the right to

make such a challenge. Second, to the extent that

such a claim would not be deemed forfeited, we

would still review under plain error, as Gilliam

did not raise the issue below. See Fed. R. Crim.

P. 52(b).