United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2019

Decided November 4, 2019

Before

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1522

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RYAN WITTER,

Defendant-Appellant.

Appeal from the United States District 

Court for the Western District of Wisconsin.

No. 3:18CR00077-003

William M. Conley,

Judge.

O R D E R

Ryan Witter pleaded guilty to conspiracy to distribute methamphetamine, in 

violation of 18 U.S.C. §§ 841(a)(1) and 846. The district judge sentenced him to 126

months of imprisonment—below the Sentencing Guidelines range of 168 to 210

months—and three years of supervised release. Witter appeals, but his appointed 

lawyer asserts that the appeal is frivolous and moves to withdraw. See Anders 

v. California, 386 U.S. 738, 744 (1967). We invited Witter to identify potential issues for 

appeal, see CIR. R. 51(b), but he did not do so. Counsel’s brief explains the nature of the 

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

Because the analysis appears thorough, we limit our review to the subjects that counsel 

discusses. 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NONPRECEDENTIAL DISPOSITION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. 19-1522 Page 2

While on extended supervision for an earlier drug conviction in Wisconsin, 

Witter began trafficking methamphetamine. He started by fronting two ounces to a 

drug dealer whom he met in prison. He then connected the dealer with his mother, who 

lived in California and had access to wholesale quantities of methamphetamine. Witter 

directed his mother to mail packages of methamphetamine to Wisconsin, where it was 

sold by several dealers. In return, an accomplice wired money to Witter and his family.

While the conspiracy was ongoing, Witter was arrested for possession of 

methamphetamine, and his supervision was revoked. He nonetheless continued to 

participate in the conspiracy. Prison officials recorded several phone calls in which he

organized drug shipments and coordinated the transfer of money to his family.

Witter was then federally charged with, and pleaded guilty to, conspiracy to 

distribute methamphetamine. A probation officer prepared a presentence investigation 

report, estimating that Witter was responsible for at least 24 ounces, or 680.4 grams, of 

methamphetamine. The amount placed him at a base offense level of 30. See U.S.S.G.

§ 2D1.1(a)(5), (c)(5) (for quantities of 500 grams to 1.5 kilograms). The officer then 

applied a three-level upward adjustment under § 3B1.1(b) for Witter’s role as a 

“manager or supervisor” of the conspiracy, and a three-level downward adjustment 

under § 3E1.1 for his acceptance of responsibility. Witter’s offense level and criminal 

history category of VI resulted in a recommended range of 168 to 210 months of

imprisonment. (He was also a career offender, but his total offense level was higher 

under § 2D1.1. See U.S.S.G. § 4B1.1(b).) Witter objected to the drug amount and the

manager enhancement, but the district court overruled both objections and adopted the 

PSR’s calculation of the guidelines range. The court then sentenced Witter to 126 

months of imprisonment, 42 months below the applicable range.

Counsel does not explore potential challenges to Witter’s guilty plea because he

“thoroughly discussed with Mr. Witter the issues that Mr. Witter could raise on 

appeal,” and “[Witter] has not indicated a desire to withdraw his plea.” But counsel 

does not state whether he “provide[d] advice about the risks and benefits” of 

challenging the plea and specifically confirmed that Witter does not want to withdraw 

it. 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). Counsel’s oversight is harmless, however, because

according to our review, the district judge substantially complied with Federal Rule of 

Criminal Procedure 11 before accepting the guilty plea.
No. 19-1522 Page 3

Witter did not move in the district court to withdraw his guilty plea, so we 

would review his plea colloquy for plain error. United States v. Davenport, 719 F.3d 616, 

618 (7th Cir. 2013). Under this standard, an error is reversible if it affected Witter’s 

substantial rights. Id. Here, the district court omitted some parts of the Rule 11 colloquy. 

See FED. R. CRIM. P. 11(b). The court did not inform Witter that he would be subject to a 

special assessment (Rule 11(b)(1)(L)), but this omission did not prejudice Witter because 

it was included in his plea agreement, which the government summarized at the plea 

hearing, and which Witter testified that he reviewed with counsel and understood. 

See United States v. Adams, 746 F.3d 734, 746–47 (7th Cir. 2014). The court also did not 

apprise Witter of its authority to order restitution (Rule 11(b)(1)(K)), that non-citizens 

may be removed from the United States if convicted (Rule 11(b)(1)(O)), or of the

government’s right to use any false statement given under oath against him (Rule 

11(b)(1)(A)). But none of those provisions pertain to Witter: the court did not order 

Witter to pay restitution, Witter is a United States citizen, and there is no prospective 

prosecution against him for perjury. So these omissions did not affect Witter’s 

substantial rights, and any argument that Witter’s plea was not knowing and voluntary 

would be futile. See United States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016).

Turning to the issues counsel discusses, we agree that any challenge to the 

substantive reasonableness of Witter’s sentence would be frivolous. Below-guidelines 

sentences, like Witter’s, are presumed to be reasonable. United States v. Patel, 921 F.3d 

663, 672 (7th Cir. 2019). The district court considered Witter’s mitigation arguments that 

his actions were driven by his own addiction and that one of his accomplices engaged 

in more egregious behavior. It weighed those arguments, however, against Witter’s 

long criminal history, the harm he caused in his community, and his failure to take 

advantage of previous opportunities for drug treatment. We agree with counsel that the 

record presents no basis to disturb the presumption of reasonableness. See United States 

v. Banas, 712 F.3d 1006, 1012 (7th Cir. 2013).

Counsel also considers and rightly rejects a potential challenge to the procedural 

soundness of Witter’s sentence. The district court correctly calculated the guidelines 

range and properly discussed the relevant § 3553(a) sentencing factors, including the 

seriousness of the offense, the sentences given to Witter’s codefendants, Witter’s 

criminal history, and his need for drug treatment. See Gall v. United States, 552 U.S. 38, 

51 (2007). Although Witter objected to the manager enhancement at sentencing, counsel 

appropriately concludes that it would be pointless to pursue this issue on appeal. An

enhancement under § 3B1.1 is warranted if the defendant was “responsible for 

organizing others for the purpose of carrying out the crime” or “influenced the criminal 
No. 19-1522 Page 4

activity by coordinating its members.” See United States v. Dade, 787 F.3d 1165, 1167–68

(7th Cir. 2015) (internal quotations omitted). In this case, Witter fronted drugs to 

kickstart the conspiracy, arranged for payments from his coconspirators, and told his 

mother when and where to send the drugs. The conspiracy could not have existed 

without his coordination; therefore, it would be frivolous to contend that the district 

court clearly erred by finding that Witter had a managing or organizing role.

As counsel concludes, it would also be frivolous for Witter to renew his objection 

to the drug quantity. Drug-quantity calculations under the sentencing guidelines are 

based on a preponderance of the evidence, and we would reverse a district court’s 

calculation only if we had “a firm and definite belief that the district court has erred.” 

United States v. Jones, 900 F.3d 440, 446 (7th Cir. 2018). Here, the district court adopted 

the PSR’s estimate of 24 ounces of methamphetamine (680.4 grams), which was based 

on evidence of 12 shipments, each containing two to seven ounces. Witter argued that 

he was not responsible for several of the shipments, either because they came from the 

wrong address or were made after he was booted from the conspiracy. But Witter’s 

arguments were belied by his accomplice’s statements that the shipments came from 

Witter, and by recordings of phone calls Witter made from prison at the time in 

question. A defendant must offer more than a “bare denial” of the information in a PSR.

See United States v. Meherg, 714 F.3d 457, 459 (7th Cir. 2013).

We GRANT counsel’s motion to withdraw and DISMISS the appeal.