United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 5, 2021

Decided January 6, 2021

Before

DIANE S. SYKES, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 20-1127

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT JOHNSON,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois, 

Eastern Division.

No. 1:18-CR-00252(1)

Charles R. Norgle,

Judge.

O R D E R

Robert Johnson robbed a bank and then led police on a high-speed car chase

before being arrested. He pleaded guilty to bank robbery, see 18 U.S.C. § 2113(a), and 

was sentenced below the guidelines to six years in prison and three years’ supervised 

release. Johnson appealed, but counsel asserts that the appeal is frivolous and moves to 

withdraw. See Anders v. California, 386 U.S. 738 (1967). Johnson opposes counsel’s 

motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses 

potential issues that an appeal of this kind might involve. Because that analysis appears

thorough, we limit our review to the subjects raised by counsel’s and Johnson’s 

submissions. 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NONPRECEDENTIAL DISPOSITION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. 20-1127 Page 2

Having confirmed that Johnson seeks to contest his guilty plea on appeal,

counsel first considers whether he could raise any nonfrivolous challenge to the 

voluntariness of his guilty plea under Federal Rule of Criminal Procedure 11.

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

move to withdraw his plea in the district court, we would review any appellate 

challenge to his guilty plea for plain error. See United States v. Davenport, 719 F.3d 616, 

618 (7th Cir. 2013). Counsel points out three omissions in the plea colloquy but correctly 

concludes that all are harmless. First, the court did not ensure that Johnson understood 

the nature of his charge. See FED. R. CRIM. P. 11(b)(1)(G). This exclusion, however, did 

not affect Johnson’s substantial rights because he was aware of the pending charges, 

having affirmed—both in his written declaration and at the change-of-plea hearing—

that he was charged with bank robbery, that counsel fully explained his charge, and 

that he understood the charge’s nature and elements. See United States v. Hernandez, 

731 F.3d 666, 670–71 (7th Cir. 2013). Second, the court did not warn Johnson that his 

statements could be used in a future perjury prosecution. See FED. R. CRIM. P.

11(b)(1)(A). But this omission too is harmless because there is no current or prospective 

prosecution against him. See United States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016). 

Third, the court asked whether Johnson’s plea resulted from “promises” rather than

“threats.” See FED. R. CRIM. P. 11(b)(2). Because the plea agreement stated that “no 

threats, promises, or representations . . . nor agreements” induced him to plead guilty, 

the omission is harmless. See United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001). 

Counsel next considers whether Johnson could argue that the evidence was 

insufficient to support a five-level upward enhancement for the specific-offense 

characteristic of possessing a firearm during his flight from the robbery. See U.S.S.G. 

§ 2B3.1(b)(2)(C). The district court had found that a firearm discovered on farm 

property on the route of Johnson’s flight from police belonged to him. Counsel rightly 

dismisses any challenge to that finding as frivolous, given that substances on the 

discarded gun matched his DNA, the gun was discovered along the route where he was 

chased, and the gun took the same bullets found on Johnson when he was arrested.

Johnson, for his part, contends that the evidence did not show that he had the gun 

during the chase, but this argument presents only “an alternative view” and does not

show “clear error.” See United States v. Block, 705 F.3d 755, 761 (7th Cir. 2013).

Counsel similarly concludes, and we agree, that it would be pointless for Johnson 

to challenge the district court’s determination that he recklessly endangered the public 

during his flight from police and therefore qualified for a two-level enhancement. 

See U.S.S.G. § 3C1.2. The evidence was more than sufficient for the court to find, based 
No. 20-1127 Page 3

on its review of police dashcam footage, that Johnson recklessly created a substantial 

risk of death or serious bodily injury when he exceeded 90 miles per hour driving down 

village streets, through a school zone, and in the face of oncoming traffic. See United

States v. Brown, 716 F.3d 988, 995–96 (7th Cir. 2013) (citing cases). 

Counsel (and Johnson) both consider challenging the district court’s decision to 

assess criminal history points for Johnson’s 2006 conviction for delivering cannabis.

Even though Johnson had been sentenced to six years, he served only 157 days through

Illinois’s Impact Incarceration Program. But counsel rightly rejects this challenge as 

frivolous because the calculation of criminal history points is based on the “sentence 

pronounced, not the length of time actually served.” United States v. Womack, 610 F.3d

427, 431 (7th Cir. 2010) (quoting United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002)).

Counsel then examines and correctly rejects any potential challenge to Johnson’s 

below-guideline sentence. The district court, counsel explains, properly calculated the 

guidelines and appropriately evaluated the relevant 18 U.S.C. § 3553(a) sentencing 

factors, including the seriousness of the offense (“to impose a sentence too light would 

deprecate the seriousness of what occurred here”) and Johnson’s history and 

characteristics (an 18-month sentence “is clearly unreasonable given the background of 

the defendant”). See United States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016). Johnson 

suggests that the court erred by not addressing his arguments that his troubled 

childhood and negative impact of his incarceration on his family and community were

mitigating factors, but a district court need not respond to such “stock arguments.”

See United States v. LeFlore, 927 F.3d 472, 475–76 (7th Cir. 2019). Johnson received a 

below-guidelines sentence, which we would presume to be reasonable, see United States 

v. Dewitt, 943 F.3d 1092, 1098 (7th Cir. 2019), and counsel could not identify anything 

that rebuts this presumption. 

In his Rule 51(b) submission, Johnson asserts that his counsel provided

ineffective assistance in the district court because counsel, among other reasons, 

“help[ed] the prosecutor.” But, any claim of ineffective assistance would best be saved 

for collateral review, where a record could be made to support it. See Massaro v. 

United States, 538 U.S. 500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457 

(7th Cir. 2020).

Johnson also seeks to challenge the conditions of his confinement under 42 U.S.C.

§ 1983, but a direct criminal appeal is not a proper vehicle for such a challenge.
No. 20-1127 Page 4

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.