United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 25, 2006

Decided September 26, 2006

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-1956

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLO WATKINS,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division

No. 04-CR-495-23

Rebecca R. Pallmeyer, 

Judge

O R D E R

After being named in a 72-count indictment charging him and 47 other

members of the Mafia Insane Vice Lords with conspiracy to distribute cocaine and

heroin throughout the west side of Chicago, Carlo Watkins pleaded guilty to one

count of possession of heroin with intent to distribute. See 21 U.S.C. § 841(a)(1). At

sentencing the district court concluded that he was responsible for selling .2 grams

of heroin to an undercover officer but could be held accountable for an additional six

kilograms as relevant conduct, resulting in a guidelines imprisonment range of 188

to 235 months. The court then sentenced Watkins to 167 months’ imprisonment

and eight years’ supervised release. Watkins timely filed notice of appeal, but

appointed counsel now moves to withdraw because she cannot discern a

nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). For

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1956 Page 2

his part, Watkins accepted our invitation to comment on counsel’s motion. See Cir.

R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our

review to the potential issues identified by counsel and Watkins. See United States

v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).

Counsel first considers whether Watkins could challenge his guilty plea and

concludes that no argument is possible because the district court substantially

complied with Federal Rule of Criminal Procedure 11(b) in taking the plea. While it

is true that substantial compliance with Rule 11 would render frivolous a challenge

to Watkins’s guilty plea, see United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.

2003), we have held that lawyers seeking to withdraw under Anders should not

even explore the propriety of a guilty plea unless the defendant wants to withdraw

the plea, United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). We have no

indication that Watkins wants his guilty plea set aside. For that reason we agree

with counsel that the plea colloquy does not provide a basis for appeal.

Next Watkins asks us to consider whether he could argue that the district

court improperly increased his offense level when it found him responsible for more

than six kilograms of heroin even though the amount in the indictment was less

than the amount for which he was held responsible. Count 70, to which Watkins

pleaded, charged possession with intent to distribute approximately .1 gram of

heroin. But we do not consider this a limitation of the charge to one transaction. 

See United States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005) (explaining that

sentencing courts may consider drug quantities not specified in the count of

conviction provided they are part of the same course of conduct or common scheme

or plan as the convicted offense). This court, however, would be precluded from

reviewing this issue because Watkins waived any challenge to the district court’s

relevant-conduct determination. See United States v. Jaimes-Jaimes, 406 F.3d 845,

847-48 (7th Cir. 2005). Waiver is a knowing and intentional decision to forego an

argument in the district court. Id. at 847. Once a defendant makes a strategic

decision to pursue one argument over another at sentencing, “he also waives those

arguments he decided not to present.” Id. at 848. Here Watkins’s counsel

intentionally decided not to challenge the district court’s relevant-conduct

determination. Prior to sentencing counsel filed a position paper stating that

Watkins agreed with the factual findings in his presentence investigation report

and had “no evidence to rebut the conclusions as to relevant conduct liability.” 

Counsel also offered no legal argument at or before sentencing to contest the court’s

findings. And Watkins tells us in his response to counsel’s Anders brief that,

although he asked counsel to object to the relevant-conduct determination, she

declined to do so: “[S]he told me if I was to argue the things that I want to argue it

will affect my sentence. And she went in the court and did what she thought was

best, which was asked for the low end” of the guidelines range. Accordingly, any

challenge to the district court’s relevant-conduct determination would be frivolous.
No. 06-1956 Page 3

Finally, counsel considers whether Watkins might argue that his 167-month

sentence is unreasonable. The district court sentenced Watkins after United States

v. Booker, 543 U.S. 220 (2005), and we will uphold the sentence so long as it is

reasonable, United States v. Tedder, 403 F.3d 836, 844 (7th Cir. 2005). In choosing

to impose a below-guidelines sentence, the district court considered the factors in 18

U.S.C. § 3553(a), including the rehabilitative programs available to Watkins in

prison as well as Watkins’s “sincere” remorse, and remarked that it saw no need “to

go above the minimum of the guidelines.” The court then adjusted Watkins’s

sentence below the guidelines minimum of 188 months to reflect a credit for the 21

months he served on related state charges that the court considered as relevant

conduct in determining his guidelines calculation. See U.S.S.G. § 5K2.23. We have

explained that it would be “hard to conceive of below-range sentences that would be

unreasonably high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), and

nothing in the court’s explanation would suggest such a possibility in this case.

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