# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted January 5 , 20 2 1

Decided January 6 , 20 2 1

Before

DIANE S. SYKES, Chief Judge

ILANA D IAMOND ROVNER, Circuit Judge

MICHAEL B. BRENNAN

, Circuit Judge

No. 20

- 1 127

UNITED STATES OF AMERICA

, Plaintiff

- Appell ee ,

v

.

ROBERT JOHNSON

, Defendant

- Appel lant

. 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 C IR

. 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 (7 th Cir. 2014). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 20

- 1127 Page 2

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

,

c ounsel first considers whether he c ould raise any nonfrivolous challenge to the

voluntar iness of his guilty plea under Federal Ru l e of Criminal Procedure 11

. S ee United States v. Konczak , 683 F.3d 348, 349 (7 th 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 (7 th 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 F ED

. R. C RIM

. P. 11(b)(1)(G)

. T his exclusion , however, did not affect Johns on’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 th e charge’s nature and elements

. See United States v. Hernandez

, 731 F.3d 666, 67 0

– 7 1 (7 th Cir. 2013)

. Second

, the court did not warn Johnson that his statements could be used in a future perjury prosecution. See F ED

. R. C RIM

. P. 11(b)(1) (A )

. But t his 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 (7 th Cir. 201 6 ).

Third

, the court ask ed whether Johnson’s plea resul ted from “ promises ” rather than

“ threats .” See F ED

. R. C RIM

. P. 11 ( b ) (2)

. B ecause the plea agreement stated that “no threats, promises, or representations

. . . nor agreements ” induced him to plea d guilty

, the omission is harmless

. See United States v. Driver , 242 F

. 3d 767, 771 (7th Cir

. 2001 )

.

Counsel n ext considers whether Johnson could argue that the evidence was insufficient to support a f ive

- level upward enhancement for the specific

- offense

characteristic of possessing a firearm during his flight from the robbery

. See U.S.S.G. § 2 B3.1(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. C ounsel 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

durin g 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, 76 1 (7 th Cir. 2013)

.

Counsel s imilarly conclude s , and we agree, that it would be pointless for Johnson

to challenge the district court’s determination that he recklessly en dangered the public during his flight from police and therefore qualified for a two

- level enhancement

. S ee U.S.S.G. § 3C1.2. The evidence was more than sufficient for t he court to find , basedNo. 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 on coming traffic

. See United

States v. Brown , 716 F.3d 988, 995

– 96 (7 th 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 deliver ing cannabis

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

Illi nois’s Impact Incarceration Program. But c ounsel 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 (7 th Cir. 2010) (quoting United States v. Gajdik

, 292 F.3d 555, 558 (7 th Cir. 2002)).

C ounsel 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 t he offense ( “ to impose a sentence too light would deprecate the seriousness of what occurred here ” ) and Johnson’s history and

characteristics ( a n 18

- month sentence “is clearly unreasonable given the background of

the defendant ” )

. See United States v. Lockwood , 840 F.3d 896, 903 (7 th Cir. 2016). Johnson suggests that the court erred by not addressing his argument s that his troubled

childhood and negative impact of his incarceration on his family and community w ere mitigating factor s , but a district court need not respo nd to such “ stock arguments. ”

See United States v. LeFlore , 927 F.3d 472, 475

– 76 (7 th Cir. 201 9). Johnson received a

below

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

v. Dewitt , 943 F.3d 1092, 1098 (7 th Cir. 2019), and counsel c ould 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 prosecuto r .” But, any claim of ineffective assistance would best be saved

for collatera l review , wh e re 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 (7 th Cir. 2020)

.

Johnson also seeks to challenge the condition s 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, w e GRANT counsel’s motion to withdraw and DISMISS the appeal.