United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 10, 2009

Decided December 11, 2009

Before

WILLIAM J. BAUER, Circuit Judge

  TERENCE T. EVANS, Circuit Judge

      ANN CLAIRE WILLIAMS, Circuit Judge

No. 09‐1084

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

ALPHONSO LEBRON,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 04 CR 351‐1

James F. Holderman,

Chief Judge.

O R D E R

Alphonso Lebron pleaded guilty to possessing and distributing a controlled

substance.  See 21 U.S.C. § 841(a)(1).  At sentencing the district court found that the

substance was crack and sentenced Lebron to 188 months’ imprisonment.  Lebron filed a

notice of appeal, but his newly appointed lawyers have concluded that the case is frivolous

and move to withdraw.  See Anders v. California, 386 U.S. 738 (1967).  Lebron opposes

counsel’s motion.  See CIR. R. 51(b).  We limit our review to the potential issues addressed in

counsel’s facially adequate brief and in Lebron’s response.  See United States v. Schuh, 289

F.3d 968, 973‐74 (7th Cir. 2002).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 09‐1084 Page 2

Lebron sold cocaine to a confidential informant and an undercover police officer and

was charged with violating § 841(a)(1).  The indictment described the substance as “cocaine

base (commonly known as ‘crack cocaine’).”  Lebron pleaded guilty, but before sentencing

he fired his attorney and, through new counsel, successfully moved to withdraw his plea on

the ground that he did not get an opportunity to review all of the discovery in the case.

More than a year later, Lebron again pleaded guilty to the charge but informed the district

court that, for sentencing purposes, he contested the characterization of the cocaine as crack.

A government chemist, the undercover police officer, and the informant who

arranged the transaction all testified at sentencing that the cocaine Lebron sold was crack,

not powder.  A defense chemist faulted the reliability of the tests conducted by the

government chemist, but conceded on cross‐examination that the substance looked like

crack and “more probably than not” was crack.  Lebron testified that he delivered powder

cocaine to the informant and speculated that the informant had “cooked” the powder into

crack before passing it on to the undercover officer, but in his plea agreement Lebron had

admitted that all three men were together in the same car when the drugs he gave the

informant were handed over to the officer.  The district court disbelieved Lebron and found

that the substance was crack, which, the court added, Lebron had “known all along.”  The

court then applied an upward adjustment for obstruction of justice, U.S.S.G. § 3C1.1, and

declined to give Lebron credit for acceptance of responsibility, id. § 3E1.1.    

   

Lebron told appellate counsel that he does not want his guilty plea vacated, and so

they properly refrained from discussing the adequacy of the plea colloquy or the

voluntariness of the plea.  See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).  But

Lebron tells us in his response to counsel’s motion that he does want the plea set aside

because, he says, it was coerced by the ineffective assistance of his former attorney.

According to Lebron, his attorney advised him that pleading guilty would assure him a

reduction for acceptance of responsibility even if he contested the drug type at sentencing.

And because he relied on counsel’s advice regarding the consequences of contesting the

drug type, Lebron continues, his guilty plea was involuntary.  Lebron’s account of events,

however, conflicts with the assurances he gave under oath when entering the plea.  As the

district court explained to Lebron before accepting his plea, a reduction for acceptance of

responsibility was not guaranteed, and Lebron told the judge that he fully understood.  He

further assured the judge that his attorney had not made any promises regarding sentencing

and acknowledged that the final sentencing decision belonged to the court.  We would

presume those representations to be true.  United States v. Linder, 530 F.3d 556, 564 (7th Cir.

2008); Schuh, 289 F.3d at 975.  And to the extent that Lebron is unsatisfied with an aspect of

counsel’s performance not apparent from this record, claims of ineffective assistance are

better suited to a collateral action under 28 U.S.C. § 2255 so that a fuller record can be
No. 09‐1084 Page 3

developed.  See Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Harris,

394 F.3d 543, 557‐58 (7th Cir. 2005).

As for Lebron’s prison sentence, counsel evaluate and reject as frivolous four

potential challenges.  The first is whether Lebron could dispute the district court’s finding

that he sold crack, a question that we would review only for clear error.  See United States v.

Padilla, 520 F.3d 766, 769 (7th Cir. 2008).  The undercover officer and informant both testified

that they are familiar with crack and that the substance Lebron gave them was crack.  The

government’s chemist testified that the substance was cocaine base and sodium bicarbonate,

and even the defendant’s chemist agreed that the cocaine “more probably than not” was

crack.  Any contention that this evidence was too little to establish by a preponderance that

the substance was crack and not some other form of cocaine base would be frivolous.  See

U.S.S.G. 2D1.1(c), Note (D); United States v. Betts, 576 F.3d 738, 742‐43 (7th Cir. 2009); United

States v. Lake, 500 F.3d 629, 634 (7th Cir. 2007).

The second potential challenge is the district court’s application of a two‐level

increase for obstruction of justice.  Although a simple denial of guilt or testimony that is the

result of confusion, mistake, or faulty memory may not serve as the basis for a finding of

obstruction, an increase under § 3C1.1 is warranted if a defendant provides materially false

testimony in a willful attempt to obstruct or impede the investigation, prosecution, or

sentencing of the offense.  U.S.S.G. § 3C1.1; United States v. Dunnigan, 507 U.S. 87, 94 (1993);

United States v. Bryant, 557 F.3d 489, 501 (7th Cir. 2009).  Lebron’s testimony at sentencing

provided ample basis for this increase.  The government introduced substantial evidence

showing that Lebron sold crack, and despite his insistence that the substance was powder

cocaine, the court concluded that Lebron “knew all along” it was crack.  And since Lebron’s

testimony went to the key issue at sentencing, it was material.  See United States v. Bermea‐

Boone, 563 F.3d 621, 627 (7th Cir.), cert. denied, 78 U.S.L.W. 3207 (2009).  Lebron’s lawyers are

thus correct in concluding that an appellate claim about § 3C1.1 would be frivolous.

The same is true about acceptance of responsibility, another of the potential

sentencing arguments counsel discuss but reject.  A defendant is not entitled to the

adjustment merely for pleading guilty.  U.S.S.G. § 3E1.1 cmt. n.3; United States v. Krasinski,

545 F.3d 546, 554 (7th Cir. 2008).  And only in the “extraordinary” case is a defendant who

obstructs justice still eligible for acceptance of responsibility.  U.S.S.G. § 3E1.1 cmt. n.4;

Krasinski, 545 F.3d at 554; United States v. Boyle, 484 F.3d 943, 944 (7th Cir. 2007).  This is not

one of those “extraordinary cases.”  After admitting the true facts during the plea colloquy,

Lebron falsely denied his conduct at sentencing, and in light of the district court’s finding

that he intentionally attempted to obstruct justice, we could not say that the court clearly

erred by denying him a two‐point reduction for acceptance of responsibility.

   
No. 09‐1084 Page 4

Finally, counsel consider characterizing Lebron’s prison sentence as unreasonable

based on the different sentencing consequences for crack and powder cocaine.  In Kimbrough

v. United States the Supreme Court held that a sentencing judge may conclude, even in a

“mine‐run case,” that the crack‐to‐powder ratio underlying the base offense levels in

U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for the particular

defendant.  552 U.S. 85, 109‐10 (2007); see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.

2008).  Yet the district court understood that it could disagree with the ratio in the

guidelines, but concluded that the offense levels in § 2D1.1 were appropriate “in this

instance.”  The court then sentenced Lebron to 188 months, the bottom of the correctly

calculated range of 188 to 235 months.  As counsel note, Lebron’s sentence is therefore

presumptively reasonable.  See Rita v. United Sates, 551 U.S. 338, 347 (2007); United States v.

Turner, 569 F.3d 637, 640 (7th Cir. 2009).  Counsel can identify no other reason why Lebron’s

sentence would be unreasonable, nor can we.   

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