# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 16, 2018

Decided January 22, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16

‐ 4049

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

DECARLOS FRAZIER,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Indiana,

Hammond Division.

No. 2:14

‐ CR

‐ 00034

Joseph S. Van Bokkelen

, J udge

.

O R D E R

A jury found Decarlos Frazier guilty of illegally possessing a firearm, 18 U.S.C.

§ 922(g)(1). Because of his three prior convictions in Illinois for robbery, aggravated

robbery, and armed robbery, 720 ILCS 5/18

‐ 1(a), (b); 720 ILCS 5/18

‐ 2, the district court

sentenced him to 15 years’ imprisonment, the mandatory minimum under the Armed

Career Criminal Act (ACCA), 18 U.S.C § 924(e)(1). Frazier appeals, and his counsel

moves to withdraw under Anders v. California

, 386 U.S. 738 (1967). Frazier opposes the

motion. See C IR

. R. 51(b). Counsel’s brief explains the nature of the case and considers

issues that an appeal of this kind might be expected to involve. Because the analysis in NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 16

‐ 4049 Page 2

the brief appears to be thorough, we limit our review to the subjects counsel discusses

and the arguments in Frazier’s response. See United States v. Bey

, 748 F.3d 774, 776

(7th Cir. 2014).

Counsel first considers challenging the sufficiency of the evidence. This

argument would present a high hurdle, which requires a showing that, when the record

is viewed in the light most favorable to the government, there is no evidence from

which a jury could find the essential elements of the crime beyond a reasonable doubt.

See United States v. Sewell

, 780 F.3d 839, 847 (7th Cir. 2015). To convict Frazier under

§ 922(g)(1), the government needed to prove only that Frazier had possessed a firearm

(Frazier stipulated to the other elements). See Sewell

, 780 F.3d at 847. At trial Officer

Miguel Pena testified that he had seen Frazier hide a revolver that police later

recovered. We agree with counsel that it would be frivolous to contest the jury’s

assessment of Pena’s credibility. See id.

Counsel next considers two issues—the adequacy of the jury instructions and

Frazier’s status as an armed career criminal under the ACCA—that counsel believes

were waived in the district court and thus would be frivolous to raise on appeal. We

will find an argument waived “if a party knowingly decided not to raise an argument as

opposed to negligently failed to raise it.” United States v. Waldrip

, 859 F.3d 446, 449

(7th Cir. 2017). Frazier and the government agreed before trial to a set of jury

instructions that the district court adopted. Before charging the jury, the judge

confirmed with Frazier’s attorney that he was not seeking additional instructions and

then verified with Frazier directly that he had no objections to the instructions.

Similarly, though Frazier initially had objected to the proposition that he was

subject to a sentencing enhancement under § 924(e), in his sentencing memorandum he

later conceded that he “appeared to be an armed career criminal based on his

convictions.” At the sentencing hearing, the judge confirmed with both Frazier and his

counsel that Frazier intended to withdraw the objection. Frazier said, “yes, I agree”

when asked about the withdrawal. Because these intentional waivers preclude judicial

review “by extinguishing the error,” United States v. Burns

, 843 F.3d 679, 685 (7th Cir.

2016), we agree that it would be frivolous to pursue either argument on appeal.

Frazier contends in his response that he may seek plain

‐ error review of his

armed

‐ career

‐ criminal status, despite the waiver. But plain

‐ error review applies only to

arguments that have been negligently forfeited, not those that have been intentionally

waived. See Molina

‐ Martinez v. United States

, 136 S. Ct. 1338, 1343 (2016) (noting that, forNo. 16

‐ 4049 Page 3

plain

‐ error review, “[f]irst, there must be an error that has not been intentionally

relinquished or abandoned”); United States v. Butler

, 777 F.3d 382, 386–87 (7th Cir. 2015).

And given that Frazier withdrew his objection to being sentenced as an armed

career criminal, it would also be frivolous to contest the mandatory

‐ minimum, 15

‐ year

sentence that resulted. See United States v. Moody

, 770 F.3d 577, 580 (7th Cir. 2014) (“[A]

district court may not disregard a minimum sentence required by statute.”).

We note that we rejected the argument Frazier proposes making—that the

Illinois robbery statute does not categorically define a violent felony for ACCA

purposes—in United States v. Dickerson

, 901 F.2d 579, 584 (7th Cir. 1990), and have so far

rejected one attempt, like Frazier’s, to persuade us to overrule that precedent,

see Van Sach v. United States

, No. 17

‐ 1824, 2017 WL 4842617, at *1 (7th Cir. Sept. 1, 2017)

(nonprecedential decision); see also United States v. Chagoya

‐ Morales

, 859 F.3d 411, 422

(7th Cir. 2017) (concluding Illinois aggravated robbery is a crime of violence under

U.S.S.G. § 2L1.2). We are aware of other pending cases that present the issue of whether

Dickerson should be revisited in light of Curtis Johnson v. United States

, 559 U.S. 133

(2010), and we express no opinion on their potential merit. The same argument would

have been available to Frazier were it not for his waiver, but as it stands, we need not

decide if counsel should be compelled to raise the argument that applicable precedent

should be overruled.

Finally, counsel rightly concludes that any possible ineffective assistance of

counsel claim (Frazier says the withdrawal of the objection to the ACCA enhancement

was a mistake) is best saved for collateral attack so that Frazier may develop a more

thorough evidentiary record. See Massaro v. United States

, 538 U.S. 500, 504–05 (2003);

United States v. Flores

, 739 F.3d 337, 341 (7th Cir. 2014).

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