United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 27, 2016

Decided November 17, 2016

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

No. 15‐3391

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

MARK BROOM, JR.,

Defendant‐Appellant.

Appeal from the United States

District Court for the Southern District

of Indiana, Indianapolis Division.

No. 1:14CR00214‐001

Sarah Evans Barker,

Judge.

O R D E R

An Indianapolis police officer stopped Mark Broom, then 66, after he threw a

cigarette butt out the window of his truck. Mr. Broom, a felon with an extensive

criminal history, was arrested after the officer learned that he had hidden a loaded

handgun in his pants and a small amount of marijuana in a sock. A drug‐sniffing dog

alerted to Mr. Broom’s truck, which had California license plates, and police found a

hidden compartment in the undercarriage, though it was empty. Mr. Broom admitted

traveling back and forth between California and Indiana several times over the previous

few months but said that he was unaware of the hidden compartment. He also said that

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15‐3391    Page 2

the gun had been left in his truck accidentally by Heather Showalter, the buyer of the

weapon.   

Authorities then charged Mr. Broom with possession of a firearm by a felon,

18 U.S.C. § 922(g)(1). In their plea agreement the parties correctly anticipated that the

district court would calculate a guidelines imprisonment range of 12 to 18 months but

left each other free to advocate a sentence outside that range. A probation officer

completed a presentence investigation report, which included statements from

Ms. Showalter’s boyfriend, Gerry Decker. Mr. Decker told the probation officer he

suspected that Mr. Broom had been trafficking methamphetamine from California to

Indiana. In fact, Mr. Decker admitted, he had bought methamphetamine from

Mr. Broom earlier on the day of his arrest. The probation officer suspected that

Mr. Broom did not innocently find the gun in his truck but instead had convinced

Ms. Showalter to make an illegal “straw purchase,” noting that a security video from

the gun dealer shows Mr. Broom in the store with Ms. Showalter. She later pleaded

guilty to making a false statement in connection with the acquisition of a firearm,

see id. § 922(a)(6). At Mr. Broom’s sentencing the government argued for a prison

sentence above the guidelines range, while defense counsel proposed a term of 16

months, the length of time that Mr. Broom had been in pretrial detention. The district

court settled on 60 months, relying on the presentence investigation report and

explaining that the guidelines range understates Mr. Broom’s violent criminal history.

Mr. Broom filed a notice of appeal, but his appointed attorney asserts that the

appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738

(1967). Mr. Broom opposes counsel’s motion. See CIR. R. 51(b). Counsel has submitted a

brief that explains the nature of the case and addresses issues that an appeal of this kind

might be expected to involve. Because the analysis in the brief appears to be thorough,

we limit our review to the subjects counsel discusses, plus the additional issue that

Mr. Broom, disagreeing with counsel, believes has merit. See United States v. Bey,

748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.

1996).   

Counsel first considers whether Mr. Broom could challenge the voluntariness of

his guilty plea. Counsel acknowledges that Mr. Broom has told his lawyer he does not

wish to contest his guilty plea, and ordinarily it would not be appropriate for a lawyer

submitting an Anders brief to discuss possible challenges to a guilty plea that the

defendant does not wish to contest. 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 informs us,
No. 15‐3391    Page 3

however, that Mr. Broom has made “incongruous statements,” suggesting that he

actually does want to challenge the plea. Yet Mr. Broom clarifies in his Rule 51(b)

response that he is satisfied with his guilty plea and instead believes that the

government breached the plea agreement by recommending a prison sentence above

the guidelines range. If Mr. Broom is correct, his remedy likely would be specific

performance rather than rescission. See United States v. Navarro, 817 F.3d 494, 502 (7th

Cir. 2016) (remanding for resentencing because government breached promise to

recommend prison sentence only within guidelines range); United States v. Diaz‐Jimenez,

622 F.3d 692, 694 (7th Cir. 2010) (“A breach is actionable, and a minimum remedy is

specific performance ....”). Thus, counsel appears to misunderstand her client’s position

about contesting his guilty plea; Mr. Broom actually articulates a potential argument for

upholding that plea.

But even if Mr. Broom had wanted his guilty plea set aside, counsel correctly

concludes that an appellate claim challenging the plea would be frivolous. A plea

colloquy will suffice to ensure that a guilty plea is knowing and voluntary as long as the

district court substantially complies with the provisions in Federal Rule of Criminal

Procedure 11. United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); Konczak, 683 F.3d

at 349; United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003). Counsel identifies

several potential deficiencies with the plea colloquy but concludes that the district court

complied with its obligations under this standard. Most of the admonishments that

counsel says the district court missed during the plea colloquy—e.g., that Mr. Broom

could not be compelled to incriminate himself but could face a perjury charge if he

made false statements under oath, see FED. R. CRIM. P. 11(b)(1)(A), that he could be

represented by counsel, see id. 11(b)(1)(D), and that restitution sometimes can be

ordered in criminal cases, see id. 11(b)(1)(K)—are not problematic in this case.

See, e.g., United States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016) (concluding that

neglecting to mention potential for perjury charge and right to counsel at trial was

harmless because perjury charge was not pending or anticipated and defendant knew

he had right to counsel); United States v. Moody, 770 F.3d 577, 581 n.12 (7th Cir. 2014)

(noting that omitting admonishment of court’s authority to order restitution was

inconsequential because restitution was not contemplated).   

Notably, though, the district court did not inform Mr. Broom that he could

receive a sentence outside the guidelines range. See FED. R. CRIM. P. 11(b)(1)(M). But the

plea agreement—which Mr. Broom assured the district court multiple times that he had

read and fully understood—is explicit that the court would evaluate the guidelines

calculations and the factors in 18 U.S.C. § 3553(a) before imposing a sentence, which
No. 15‐3391    Page 4

could be outside the guidelines range. The agreement also clarifies that the court would

not be bound by the parties’ sentencing recommendations or applications of the

guidelines. See United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001) (concluding that

omissions from plea colloquy were harmless because most details were in written plea

agreement). Thus it would be frivolous for Mr. Broom to assert that he was unaware of

the district court’s authority to impose a sentence above the guidelines range.

An appellate claim about the validity of Mr. Broom’s guilty plea thus would be

frivolous, but that still leaves Mr. Broom’s contention that the government breached the

plea agreement—a contention that also would be frivolous. In his Rule 51(b) response,

Mr. Broom asserts that the government agreed to recommend a sentence no greater

than 16 months and thus breached the plea agreement by recommending a sentence

above the guidelines range. See Navarro, 817 F.3d at 499–500 (vacating and remanding

sentence where government breached agreement not to recommend sentence above

guidelines range). Although the plea agreement identifies a probable guidelines range

of 12 to 18 months, it also specifies that the government could request any sentence it

wished, “including one above the advisory guidelines range.” R.69 at 4 (Plea

Agreement). The agreement explicitly encompasses the complete understanding

between the parties, and thus Mr. Broom’s proposed argument is flatly refuted by the

very agreement that he says was breached.

All that could remain are potential issues with the procedural and substantive

reasonableness of Mr. Broom’s sentence.1 We will uphold a sentence if the district court

followed the appropriate procedures—including properly calculating the guidelines

range, considering that range and the other factors under 18 U.S.C. § 3553(a), and

adequately explaining the chosen sentence—and if the district court did not abuse its

discretion in selecting the sentence. United States v. Jackson, 547 F.3d 786, 792 (7th Cir.

2008). While it is true that the justification for a variance must be more compelling as

the degree of variance from the guidelines range increases, United States v. Lockwood,

789 F.3d 773, 781–82 (7th Cir. 2015) (Lockwood I); United States v. Snyder, 635 F.3d 956, 961

(7th Cir. 2011), we will accept a district court’s explanation if it is sufficient “to allow for

meaningful appellate review,” Gall v. United States, 552 U.S. 38, 50 (2007); see United

States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008).

                                                 

1 The plea agreement includes a term waiving Mr. Broom’s right to appeal a

sentence falling within a guidelines range of 12 to 18 months, but the 60‐month term

imposed by the court makes that provision inapplicable.
No. 15‐3391    Page 5

In this case the district court sentenced Mr. Broom well above the calculated

guidelines range, but the sentencing transcript shows that the court adequately

explained its reasons for doing so and grounded its decision in the factors from

§ 3553(a). The court explained that Mr. Broom’s criminal history category understates

the seriousness of his criminal history, referring to the fact that the majority of

Mr. Broom’s prior convictions were not counted in calculating his criminal history

score. See U.S.S.G. § 4A1.3(a)(1) (endorsing sentence above guidelines range if

defendant’s criminal history category underrepresents actual criminal history); United

States v. Lockwood, No. 15‐3856, 2016 WL 6436848, *4 (7th Cir. Nov. 1, 2016) (Lockwood II)

(upholding above‐guidelines sentence as reasonable based on underrepresentation of

defendant’s criminal history in guidelines calculation); Jackson, 547 F.3d at 793–94

(same). Mr. Broom’s criminal history category was based on only two misdemeanor

convictions, one for driving with a suspended license and the other for assault. But

Mr. Broom has numerous other convictions that because of their age did not count

toward his criminal history score. See U.S.S.G. § 4A1.2(e). The list includes convictions

for manslaughter (he killed his wife) and three convictions for robbery, two of them

while armed. As the district court noted, Mr. Broom’s crimes spanned more than

40 years, with the only significant gap between offenses being the 18 years he served for

the manslaughter conviction. The district judge acted within its discretion in

determining that Mr. Broom’s prior convictions were quite serious and in weighing that

consideration heavily in its evaluation of the sentencing factors listed in § 3553(a). The

sentence imposed, significantly above the calculated guidelines range, is reasonable.

See United States v. Warner, 792 F.3d 847 (7th Cir. 2015) (“District courts enjoy broad

discretion to fashion an appropriate, individualized sentence in light of the factors in

18 U.S.C. § 3553(a).”). The court did not find any circumstance mitigating Mr. Broom’s

criminal history and was on solid ground in disbelieving Mr. Broom’s account of how

he came into possession of the gun.   

Given the court’s adequate consideration throughout the proceedings of all the

relevant facts and its reasoned basis for imposing an above‐guidelines sentence, we

conclude that a challenge to the sentence’s procedural or substantive reasonableness

would be frivolous. Accordingly, Counsel’s motion to withdraw is GRANTED, and the

appeal is DISMISSED.

IT IS SO ORDERED