In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1148

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COREY WEBSTER,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin. 

No. 09-CR-111-C-01—Barbara B. Crabb, Judge.

SUBMITTED NOVEMBER 17, 2010—DECIDED DECEMBER 2, 2010

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

PER CURIAM. Corey Webster pleaded guilty to distributing heroin, see 21 U.S.C. § 841(a)(1), after making a

single sale in January 2008. Prior to the plea colloquy, the

government had filed an Information to enhance the

maximum prison term from 20 to 30 years and the minimum term of supervised release from 3 to 6 years based

on a “prior conviction” for a felony drug offense. See 21

U.S.C. §§ 841(b)(1)(C), 851(a). That prosecution by Wis-
2 No. 10-1148

consin authorities arose from another heroin sale occurring several days before the current offense. Webster,

though, did not plead guilty in state court until November 2008—11 months after he committed the federal

crime—and in fact he was still waiting to be sentenced

in state court when the district court sentenced him in

this case to 151 months in prison and 6 years of supervised release.

Webster filed a notice of appeal, but his appointed

lawyer has concluded that the appeal is frivolous and

moves to withdraw. See Anders v. California, 386 U.S. 738

(1967). Webster has not accepted our invitation to

respond to counsel’s motion. See CIR. R. 51(b). We limit

our review to the potential issues identified in counsel’s

facially adequate brief. See United States v. Schuh, 289

F.3d 968, 973-74 (7th Cir. 2002).

Because Webster does not want his guilty plea vacated,

counsel correctly forgoes discussing the voluntariness

of the plea or the adequacy of the plea colloquy. See

United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).

Counsel evaluates whether Webster could challenge

his enhanced term of supervised release term on the

ground that the government’s Information is invalid.

Under § 841(b)(1)(C) the enhanced penalties for other

drug convictions apply only if the defendant committed

the charged violation of § 841(a)(1) “after a prior conviction for a felony drug conviction has become final.” As

counsel recognizes, however, the Information is invalid

because it relies on a conviction for a charge that

had not even been filed when Webster committed the
No. 10-1148 3

federal crime and, indeed, still was not final on the date

of the federal sentencing. Hence, it would appear that the

district court erred in concluding that Webster was

subject to a minimum of 6 years (and not 3) of supervised release. See 21 U.S.C. § 841(b)(1)(C).

Yet, counsel reasons that challenging the term of supervised release would be frivolous because § 851(c)(2)

provides that “[a]ny challenge to a prior conviction,

not raised by response to the information before an increased sentence is imposed in reliance thereon, shall

be waived unless good cause be shown for failure to

make a timely challenge.” Otherwise, Webster’s silence

at sentencing might allow us to review the enhanced

minimum penalty for plain error. See United States v.

Lewis, 597 F.3d 1345, 1346-47 (7th Cir. 2010) (discussing

whether defendant had waived, or simply forfeited,

application of enhancement for prior conviction where

government failed to file Information under § 851 but

defendant had affirmatively conceded at sentencing that

enhanced minimum sentence applied). But because of

§ 851(c)(2), counsel contends that we cannot review the

issue at all. See United States v. Dickerson, 514 F.3d 60, 65

(1st Cir. 2008).

We have not addressed whether § 851(c)(2) blocks all

appellate challenges to convictions that were not

disputed in the district court, particularly those where,

as here, the defendant could argue that the government

relied on an offense that does not as a threshold matter

meet § 841’s definitional requirements for a “prior conviction.” The language of § 851(c)(2) makes evident that
4 No. 10-1148

a challenge to the validity of a prior conviction is waived

if no objection is made in the district court. See 21 U.S.C.

§ 851(c)(2); Custis v. United States, 511 U.S. 485, 491-92

(1994); United States v. Thomas, 348 F.3d 78, 88 (5th Cir.

2003) (applying § 851(c)(2) to waive defendant’s challenge to prior conviction on ground of ineffective assistance of counsel). Other circuits have concluded, however

that challenges of any type can be waived, including

contentions that a conviction does not qualify as a “prior

conviction.” See United States v. Law, 528 F.3d 888, 908-09

(D.C. Cir. 2008) (relying on § 851(c)(2) in concluding that,

by not raising issue in district court, defendant waived

argument that prior drug convictions used for enhancement were not felonies as required by § 841); United States

v. Brooks, 508 F.3d 1205, 1208-09 (9th Cir. 2007) (same);

United States v. VanDoren, 182 F.3d 1077, 1082-83 (9th Cir.

1999) (relying on § 851(c)(2) in concluding that, by not

raising issue in district court, defendant waived argument that drug conviction used for enhancement

was not “final” when federal offense was committed);

United States v. French, 974 F.2d 687, 696-97 (6th Cir.

1992) (same).

We do not have a decision on point, but that would not

keep us from concluding that any attempt by Webster to

skirt the effect of § 851(c)(2) would be frivolous. See

United States v. Lopez-Flores, 275 F.3d 661, 662-63 (7th Cir.

2001) (“[A] ground of appeal can be frivolous even if

there is no case on point—may be frivolous because, for

example, of the clarity of statutory language, or even as

a matter of common sense.”). Yet we need not go so far

in this case because, even if the potential issue is not
No. 10-1148 5

waived entirely by application of § 851(c)(2), the question is nevertheless frivolous when scrutinized under the

plain-error standard. See Lewis, 597 F.3d at 1347. Under

that standard Webster would have to prove that the

district court committed an obvious error that affected

substantial rights and undermined the fairness, integrity,

or public reputation of judicial proceedings. See United

States v. Olano, 507 U.S. 725, 732-34, 736 (1993). The

error here is clear and affected Webster’s substantial

rights since it led the district court to conclude that the

minimum term of supervised release was six years, not

three. See United States v. Graham, 317 F.3d 262, 265, 273-

75 (D.C. Cir. 2003) (substantial rights affected where

district court sentenced defendant under wrong subsection of § 841, leading to higher minimum term of supervised release). But Webster would be unable to persuade

us that the court’s error in calculating the minimum

term of supervised release seriously affected the fairness, integrity, or public reputation of the proceedings

and must be corrected. See United States v. Mouling, 557

F.3d 658, 667 (D.C. Cir. 2009). The district court’s error

here was inadvertent. As counsel notes, the district court

followed the procedural requirements of § 851 and gave

Webster notice of the proposed enhancement and an

opportunity to challenge the use of the state distribution offense for enhancement. See United States v. Lane,

591 F.3d 921, 927 (7th Cir. 2010). And since all violations

of § 841(a)(1) carry the potential for a life term of supervised release, see United States v. Pollard, 249 F.3d 738, 739

(8th Cir. 2001); United States v. Eng, 14 F.3d 165, 166, 168,

171-73 (2d Cir. 1994), the government’s use of Webster’s
6 No. 10-1148

state conviction for enhancement raised only the statutory minimum term. With or without the Information

filed by the government, the district court could have

imposed a term of six years or longer. Thus, we agree

with appellate counsel that it would be frivolous to

argue that the sentencing court committed plain error.

Finally, counsel considers whether Webster might

argue that his prison sentence is unreasonably long. The

district court specifically evaluated Webster’s arguments in mitigation and the relevant factors in 18 U.S.C.

§ 3553(a). Webster’s prison term is within the properly

calculated guidelines range and thus is presumptively

reasonable. See Rita v. United States, 551 U.S. 338, 350-51

(2007); United States v. Moreno-Padilla, 602 F.3d 802, 810

(7th Cir. 2010). Counsel has not identified a basis for

setting aside that presumption, nor have we. Accordingly, we agree with counsel that a reasonableness challenge would be frivolous.

Counsel’s motion to withdraw is GRANTED and the

appeal is DISMISSED.

12-2-10