# Un ited State s Co urt o f Appea ls
F or the Seve nth Circuit Chicago, Illin ois 60604 Arg ued March 2, 2010 Deci ded Jun e 29, 2010
Before DIANE P. WOOD, Circ uit Judge
ANN CLAIRE WI LLIAMS , Circ uit Judge DAVID F. HAMILTON, Circ uit Judge

No. 08-3755
UNITED STATES OF AMERI CA, Plaintiff-Appellee ,

v. JOSEPH CHESS, Defen dant-Appellant

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No. 09-1762
UNITED STATES OF AMERI CA, Plaintiff-Appellee , Appeal from the United Stat es Di stric t Courtfor t he Northern Di stric t of Illi noi s, Eas ter n Di vis i on. No. 06 CR 684
Blanch e M. M anning, Judge

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Appeal from the United Stat es Di stric t Courtfor t he Northern Di stric t of Illi noi s, Eas ter n Di vis i on. N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i t e d o n ly i n a c c o r d a n c e w i t h F e d

. R

. A p p . P

. 3 2

. 1No. 08-3755, 09-1762, & 09-2198 Pag e 2

v. ANTWAN PET ERSO N,

Defen dant-Appellant

. No. 06 CR 684
Blanch e M. M anning, Judge

.

No. 09-2198
UNITED STATES OF AMERI CA, Plaintiff-Appellee ,

v. PRINCE COLEMA N,

Defen dant-Appellant

. Appeal from the United Stat es Di stric t Courtfor t he Northern Di stric t of Illi noi s, Eas ter n Di vis i on. No. 06 CR 684
Blanch e M. M anning, Judge

.

O R D E R Joseph Chess, A ntwan Peter son, and Pr ince Co leman ar e three of the people who too k part in an ext ensi ve conspi racy to sell hero in a nd fentanyl in the Dearborn Homes housing proj ect in Chi cago. Toget her wi th their co-defendan t, Saundra Falls, they pleaded gui lty to violati ons of 21 U.S.C. §§ 846, 841(a)( 1). Falls has pursued an appeal from the sentence she received; we di spose of that appeal in a separate or der. The atto rneys for Chess, Peterson, and Coleman have all moved to wi thdraw from repr esenta t io n a nd to di smi ss the appea l s a s fr iv olous, pursuant t o Anders v. California, 386 U.S. 738 (1967). All t hr e e d e fe nd ants have exer ci sed their right to fi le a response to couns el’s sub mi ssi on, in response to o ur i nvitati on. See C I R
. R. 51(b) . We consi der each person’s case in turn. A. Joseph Chess
Chess pleaded gui lty to pos se ss io n wi th intent to di strib ute heroin, see 21 U.S.C. § 841(a)( 1), and he received a sentence of 120 months’ i mpri sonment. He does not want hi sNo. 08-3755, 09-1762, & 09-2198 Pag e 3

gui lty plea vacated, and so hi s lawyer proper ly refrained from di scu ssing the adequacy of the plea colloquy or the vo luntarin ess of Chess’s plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Ci r. 2002).
Chess’s ro le in the cons p ir a cy began as a look out for yet another member, Larr y Smi th, and later evo lved into that of a drug-seller. He was arr ested in Mar ch 2004 holding 34 bags of heroin (in whi ch approx i mately 5.6 gr ams were found) and $600 in cash

. Chess was released by the poli ce after that arr est, becau se they thought that he mi ght be wi lling to co o perat e wi th the federal investigati on, but he was re-arr ested the next day after he i mprudently sold some heroin to an undercover Chi cago polic e offi cer. Counsel consi ders whether Chess mi ght try to contest the drug quanti ty on whi ch the sentence was based, but , a s t he di stric t court explain ed, Chess’s own admi ssi ons supp or t a finding of at leas t 1.8 kilograms of heroin. Th at amount yields anoffense level of 32. In addi tion, Ches s got a br eak t hat he di d not deserv e: the courtgav e hi m a 3-level reducti on for acceptanc e of responsibi li ty ov er t he g o ver nment’s objection; under those ci rcums tances, he should have got ten only a 2-level di scount. See United States v. Deberry, 576 F.3d 708, 710 (7th Ci r. 2009), cert. denied, 78 U.S. L

. W

. 3 564 (U.S. Mar

. 29, 2010) (No. 09-7351). And that was not the only break Chess got : although hi s tot al offense level of 32 and hi s cri minal hi stor y catego ry of VI prov i ded for a gui delines range of 210 t o 2 40 months, th e d istric t court chose a sentence of only 120 months. Any challen ge to the reasonableness of thi s sentence would be fri vo lous. See United States v. Poetz , 582 F.3d 835, 837 (7th Ci r. 2009) (a sentence below the gui delines range i s rar ely, i f ever , unreasonable).
B. Antwan Peterson
Peterson pleaded gui lty to possess i on of co ca ine wi th intent to di strib ute, in violati on of 21 U.S.C. § 841(a)( 1), and was sentenced to 160 months in pris on. He admi tte d that he sold crack, and the recor d showed that he also par t icip a t e d wi th other gang members in heroin sales for several years. Counsel begi ns by asserti ng that Peterson als o does not wi sh to challenge hi s plea, and s o u nder Knox any i ssu es relat ing to the plea are off th e t a bl e . Pet erson’s own fi ling casts some doubt on that repr esentation, since he appears to want to chal l e ng e t he v ali di ty of hi s indi ctment and he expr essly asserts that “hi s plea was involuntar y.” Becaus e he di d not move to wi thdraw h i s plea in the di stric t court, however , our rev i ew of any i ssu e relat ed to i t would be li mi ted to plain err or . United States v. Griffin , 521 F.3d 727, 730 (7th Ci r.2008). In any event, we see no merit to Peterson’sNo. 08-3755, 09-1762, & 09-2198 Pag e 4

co mplaint that the indi ctment was invali d on i ts face becau se the U.S. Att or ne y ne v e r si gned i t. See United States v. Irorere, 228 F.3d 816, 830-31 (7th Ci r. 2000) (“alleged fai lure of the gr a nd j ur y foreper son and the atto rney for the gov ernment to si gn the indi ctment would be m ere t echni cal defi ci enci es, and b ecaus e the defendant does not allege thatthe indic tment di d not adequately inform hi m of the charges again st hi m or oth e r wis e prej udi ce hi s defense, the defendant’s challen ge to the suffi ci ency of t he ind ictment i s wi thout merit”). Peter so n’s complaint about the quali ty of hi s lawyer’s pret rial investigati on i s the kin d of thi ng that i s bette r rais ed in a post-convic tion proceeding, in whi ch the record can be proper ly deve loped.
Wi th respect to the sentence, couns el has spott e d o ne err or in the di stric t court’s calculati on of Pe ter son’s gui delines range, but i t was an err or that helped hi m. At sentencing, the gove rnment c onceded that bec ause P eter son’s relevantconduc t in clud ed both heroin and crack, the gui delines require that the offense level be calculated based on mari juana e qui valenci es and then reduced by two levels. See U.S.S .G. § 2D1.1 cmt. N.10(D) (i ). But becau se the 10 kilograms of heroin for whi ch Peterson was responsible would, in i tself, have resulted inthe same offense lev el as t he combinati on of hero in and crack (level 36), the court should not have inclu ded the two-level reducti on. See id. § 2D1.1 cmt. n.10(D )(i i ).
Counsel rightly poin ts out that Peterson would have no incenti ve to rais e thi s poin t on appeal, because t he reducti on was favor able to him . Mor eov er, couns el also corr ectly notes that t he g o v e rnment’s deci si on not to fi le a cross-appeal precludes thi s court from corr ecti ng that err or by adjusting the sentence upwards. See Greenlaw v. United States, 554 U.S. 237 (2008). Fin ally, Peterson’s sen t e nc e of 160 months was below the bott om of the mi stakenly low range (188-235 months), and so any challen ge would indeed be fri vo lous.
C. Pri nce Coleman
Coleman pleaded gui lty to conspi ring to di strib ute a contro lled sub stance (heroin, fentanyl, and crack); hi s sentence was 120 months. Counsel repr esents that Coleman does not want hi s gui lty plea vacated; seeing nothin g in hi s response to the contrar y, we accept that repr esentation and move past any questi on of the adequacy of the plea colloquy or the vo luntarin ess o f his plea. (Coleman does appear to complain a bi t about the quali ty of repr esentation he r e ce i ved from hi s tr i al atto rney, but that matter i s better left to a postconvic tion proceeding.)No. 08-3755, 09-1762, & 09-2198 Pag e 5

Coleman’s ini tial ro le in the offense was to prov i de secu rity fo r another gang member, but he later gr aduated to purchas ing mi xin g supp li es for L arr y Smi th and helping Smi th mi x and packa g e heroin for sale. Counsel suggests that Coleman mi ght tr y to complain about the gov ernment’s deci si on not t o ma k e a motion based on sub stanti al assi stance, since the absenc e of such a motion mean t t hat he had no hope of receiving a se nt ence below the mandatory mini mum of 120 months. But the gov ernment too k t he posi tion that Coleman’s assi stance had not been sub stanti al enough to warrant a motion, becau se Coleman refused to testif y again st hi s cousin. The di stric t court, after studying the i ssu e for a week, conclu ded that becau se Coleman stopped assi sting the gov ernment, the gov ernment was well wi thi n i ts rights to wi thhold the motion. Counsel also consi ders the q ue st i on whether Coleman could rais e a gener al due process complaint about his sentencing hearing, bu t r i ghtly conclu des that this would be frivolous.
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Our independent rev i ew of the faci ally adequate bri efs that co uns el have fi led in each of these three cases, and our consi derat i on o f t he addi tional statements that the defendants have fi led, persuade us that there are no i ssu es can be pursued on appeal. We there fore gr ant the motions to wi thdraw fi led by c oun s e l for C h e s s, P e ter son, and Coleman, and di smi ss each of these appeals.
A P P E A L S D I S M I S S E D
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