In the

United States Court of Appeals

For the Seventh Circuit

No. 01-3099

United States of America,

Plaintiff-Appellee,

v.

 

Larry D. Knox,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:00CR40110--J. Phil Gilbert, Judge.

Submitted March 26, 2002--Decided April 29, 2002

 Before Posner, Easterbrook, and Ripple,

Circuit Judges.

 Easterbrook, Circuit Judge. Following his

indictment on three counts of peddling

crack cocaine, see 21 U.S.C.

sec.841(a)(1), Larry Knox pleaded guilty.

His reward was a three-level subtraction

for acceptance of responsibility. See

U.S.S.G. sec.3E1.1(b). That reduction

sliced at least 84 months off his

punishment: his sentence was 240 months

(from a range of 235-293 months), while

the range without the credit would have

been 324-405 months. Believing that his

sentence should have been lower still,

Knox instructed his lawyer to file a

notice of appeal.

 Representing that he cannot identify any

non-frivolous issue, counsel has filed a

brief under Anders v. California, 386

U.S. 738 (1967), seeking our permission

to withdraw. One question that counsel

considers is whether Apprendi v. New

Jersey, 530 U.S. 466 (2000), could be

used to cut down the sentence. Counsel

believes that any such argument would be

futile, an accurate assessment. Apprendi

holds that facts that increase the

statutory maximum punishment must be

established to the satisfaction of the

trier of fact beyond a reasonable doubt.

But the statutory maximum for

distributing any amount of cocaine is 240
months’ imprisonment, see 21 U.S.C.

sec.841(b)(1)(C), and Knox was convicted

on three counts, so for him the maximum

is 60 years (720 months). Although the

courts of appeals do not agree whether,

in the wake of Apprendi, U.S.S.G.

sec.5G1.2(d) still compels a judge to use

consecutive sentences when necessary to

construct a term within the Guideline

range, compare United States v. Angle,

254 F.3d 514, 518-19 (4th Cir. 2001) (en

banc) (yes), with United States v.

Vasquez-Zamora, 253 F.3d 211, 214 (5th

Cir. 2001) (no), every court of appeals

believes that consecutive sentences are

lawful if the district judge chooses to

impose them. See United States v.

Buckland, 277 F.3d 1173, 1184-86 (9th

Cir. 2002) (en banc) (collecting

authority); United States v. Bradford,

246 F.3d 1107, 1114 (8th Cir. 2001). For

Knox it was possible to sentence within

the 235-293 month range without

consecutive terms, and the district judge

chose that option. Apprendi poses no

conceivable obstacle. See Talbott v.

Indiana, 226 F.3d 866, 869 (7th Cir.

2000).

 Next counsel asks whether there is a

non-frivolous objection to the

calculations that produced the 235-293

month range. Two elements dominated: the

quantity of cocaine included in Knox’s

relevant conduct and a two-level addition

under U.S.S.G. sec.2D1.1(b)(1) for

possessing a firearm. Counsel concludes

that there is no prospect of upending the

sentence, and again we agree. Findings of

fact about relevant conduct may be upset

only for clear error, see United States

v. Johnson, 227 F.3d 807, 812-13 (7th

Cir. 2000), and these findings--based as

they were on the district judge’s

decision to believe two persons who

testified about their dealings with Knox-

-are all but impossible to upset. See

Anderson v. Bessemer City, 470 U.S. 564,

575 (1985). One of these witnesses

testified that she accompanied Knox on

two trips to buy cocaine and then

transported drugs for him; the second

witness testified that Knox had traded a

gun for crack. Far from providing grounds

to reduce the sentence, these facts

suggest that Knox received a break. The

397 grams of crack that the district

judge found to be Knox’s relevant conduct

represented just two transactions about

which the first witness testified.
Although the evidence at sentencing shows

that Knox conducted a drug-distribution

business, the full scope of which must

have exceeded 500 grams, his sentence was

based on the range for 150 to 499 grams.

Other potential lines of argument that

counsel evaluates would be even weaker,

because not raised at all in the district

court. Indeed, Knox and his lawyer

informed the judge that, with the

exception of the issues we have just

mentioned, they had no problems with the

conclusions of the presentence report.

That representation waived any other

theories related to the sentence. See

United States v. Scanga, 225 F.3d 780,

783 (7th Cir. 2000).

 Let us now go back to where counsel

began. In what seems to have become an

obligatory performance in every Anders

brief, counsel first inquired whether it

is possible to challenge the guilty plea

on the ground that the judge did not

comply with Fed. R. Crim. P. 11. Knox did

not ask the district judge for leave to

withdraw his plea, so only plain error

could justify relief, see United States

v. Vonn, 122 S. Ct. 1043 (2002), and that

is an exacting standard. See Johnson v.

United States, 520 U.S. 461 (1997);

United States v. Olano, 507 U.S. 725

(1993). Although counsel tells us that he

found no flaws in the Rule 11 colloquy,

he did not look closely enough. The

district judge did not explicitly remind

Knox of his right to plead not guilty,

see Rule 11(c)(3)--though Knox, who

already had pleaded not guilty and sought

to alter that plea, obviously knew this--

and failed to inform Knox what could

happen if he violated the terms of the

supervised release that would follow his

imprisonment, see Rule 11(c)(1). Again it

is likely that Knox knew that bad things

(such as a return to prison) lay in store

if he failed to abide by the terms of

release, but counsel’s failure to find

and discuss these shortcomings in the

guilty-plea procedure raises some doubts

about the thoroughness with which he

prepared this Anders brief.

 Yet there is an antecedent question:

Does Knox want to withdraw his plea,

forfeit the three-level reduction, go to

trial, and take the risk of a longer

sentence? The sentence is likely to be

longer not only because the range will

jump to 324-405 months if everything else
stays the same while Knox loses the

reduction for acceptance of

responsibility, but also because the

testimony at trial may identify

additional relevant conduct, which could

produce a higher sentence without any

claim of prosecutorial vindictiveness.

See Alabama v. Smith, 490 U.S. 794

(1989). What is more, the judge might ask

the jury to decide whether Knox

distributed more than 5 grams of crack;

if the jury answered yes, the maximum

sentence would jump to 40 years per

count. 21 U.S.C. sec.841(b)(1)(B)(iii).

Appellate lawyers are not obliged to

raise issues that could boomerang on

their clients; it is no failure of

advocacy to leave well enough alone.

 Defendants are entitled to competent

appellate representation. Good advocates

do not raise every non-frivolous legal

issue. Counsel’s duty is to present those

contentions that promote the client’s

interest. Sometimes a litigant may want

to take a potentially injurious step, and

because it is his liberty that lies in

the balance courts allow defendants to do

so at trial. Thus before a case concludes

in the district court counsel should

consult with the client to determine

whether the accused wants to withdraw the

plea. Cf. Roe v. Flores-Ortega, 528 U.S.

470, 477-81 (2000). But if a client

should express a desire to advance a Rule

11 argument on appeal, counsel would be

entitled to make an independent decision.

A lawyer may limit appellate arguments to

those that in his best judgment would do

more good than harm. See Jones v. Barnes,

463 U.S. 745 (1983). Cf. Martinez v.

Court of Appeal, 528 U.S. 152 (2000).

Lawyers should not blindly assume that

their clients will benefit from every

legal contention, no matter the hazard,

and in particular should not present (or

even explore in an Anders submission) a

Rule 11 argument unless they know after

consulting their clients, and providing

advice about the risks, that the

defendant really wants to withdraw the

guilty plea. See United States v. Driver,

242 F.3d 767, 770 (7th Cir. 2001).

Nothing we have seen suggests that Knox

wants to withdraw his plea, so we do not

think it matters that counsel has

supplied a substandard assessment of the

tools that might be available if Knox did

want to start over.
 Knox received notice of counsel’s desire

to withdraw, see Circuit Rule 51(b), and

has filed three responses. These evince

dissatisfaction with the length of his

sentence and a desire to argue that

counsel was ineffective at sentencing for

not making additional objections to the

presentence report and not presenting

evidence in opposition to the

prosecutor’s witnesses. An ineffectiveassistance claim would be premature on

direct appeal; Knox may pursue his

options under 28 U.S.C. sec.2255. See

Glover v. United States, 531 U.S. 198

(2001). Knox believes that the

calculation ofrelevant conduct is limited

to the drug quantities listed in the

indictment, but that view is untenable.

See Edwards v. United States, 523 U.S.

511 (1998); United States v. Bjorkman,

270 F.3d 482 (7th Cir. 2001). The closest

Knox comes in any of his three filings to

expressing a desire to withdraw the plea

is this passage: "Counsel was ineffective

for tell me to Plead guilty to three

counts, when He Had only Two laboratory

Analysis Reports, and I consistently Told

frist Counsel [the appellate lawyer’s

predecessor] I only Remember Two (2)

sales to c/s". This story conflicts with

what Knox said in open court, where he

told the judge that he was pleading

guilty to all three counts because he did

what the indictment alleges and thus is

guilty. A defendant’s assertion that he

committed perjury in the judge’s presence

is a poor reason to start anew. United

States v. Stewart, 198 F.3d 984 (7th Cir.

1999). See also Blackledge v. Allison,

431 U.S. 63, 74 (1977); Menna v. New

York, 423 U.S. 61, 62 n.2 (1975). Still,

unless Knox wants to withdraw his plea to

all three counts, he has little to gain

from this appeal, and much to lose (for

going to trial on even one count, or

frivolously denying relevant conduct

during resentencing, could cost him his

reduction for acceptance of

responsibility). Nothing in any of Knox’s

filings hints that he wants all three

guilty pleas vacated. His filings do not

imply that he was ignorant of his right

to plead not guilty or that details about

supervised release entered into his

decision to plead guilty. As a result his

lawyer had no duty to explore legal

theories that might have been put to use

in quest of that goal.

 Counsel’s motion to withdraw is granted,
Knox’s motions for appointment of a

different lawyer are denied, and the

appeal is dismissed as frivolous.

 RIPPLE, Circuit Judge, dissenting. I

cannot join in my colleagues’ decision to

accept the Anders brief submitted by

counsel, to permit counsel to withdraw

and to dismiss the appeal as frivolous. 

 At this early stage of the proceedings,

our first task is to determine whether we

ought to permit counsel to withdraw and

then dismiss the appeal as frivolous. In

my view, this Anders brief is inadequate.

Despite counsel’s assurances that no Rule

11 violation occurred during the plea

colloquy, it is clear that the district

court did not advise Mr. Knox that he had

the right to plead not guilty, as

required by Rule 11(c)(3), nor did it

inform him of the consequences for

violating the terms of his supervised

release, as required by Rule 11(c)(1). 

 One of the reasons that defense counsel

is required to submit an Anders brief

rather than a mere "no-merit letter" is

that an Anders brief assists the

appellate court in its review "because of

the ready references not only to the rec

ord, but also to the legal authorities as

furnished by counsel." Anders v.

California, 386 U.S. 738, 745 (1967). In

this way, the confidence of the appellate

court that the appeal raises no nonfrivolous issues and the confidence of

the indigent defendant that his case

received the "advocacy which a nonindigent defendant is able to obtain" are

assured. Id. at 745. Here, counsel has

failed to notice the Rule 11 violations

and so has not advised this court of the

worth in appealing the matter. Counsel’s

brief, therefore, provides us with no

more assistance than the no-merit letter

rejected by the Supreme Court in Anders.

See Anders, 386 U.S. at 744-45 ("The nomerit letter . . . affords neither the

client nor the court any aid.").

 In dismissing this appeal, my colleagues

excuse the omission of counsel because

nothing suggests that Mr. Knox wants to

withdraw his guilty plea, and a

withdrawal of the plea may put Mr. Knox

in jeopardy of receiving a higher
sentence should he be convicted after a

trial. This conclusion, in my view, is

premature at best. If counsel did not

recognize the infirmities of the Rule 11

colloquy, it is apparent that he also did

not apprise his client of these matters

and of the consequences of raising the

error on appeal. After receiving such

advice, the defendant may well determine,

for the reasons given by my colleagues,

not to raise the matter. However, this

court ought not express a view on the

advisability of raising the issue or on

the merits of the issue until we can be

certain that the defendant, with the

advice of counsel, has considered it. As

has been the practice of this court, we

should order counsel for Mr. Knox to

evaluate the Rule 11 violations and to

determine whether it indeed would be

frivolous to appeal the issue. For

instance, in United States v. Graves, 98

F.3d 258, 259 (7th Cir. 1996), after

counsel had submitted an Anders brief re

citing that there had been no violations

of Rule 11, we ordered counsel to

consider two specific Rule 11 issues--the

district court’s failure to advise the

defendant that any statement he made at

the plea hearing could be made the basis

of a perjury prosecution of him, and the

misrepresentation of the availability of

good-time credits for the offense. See

also United States v. Robinson, 96 F.3d

246, 254 (7th Cir. 1996) (granting

counsel’s motion to withdraw, after

counsel filed an Anders brief submitting

that there had been no Rule 11 violation,

but appointing new counsel to address the

issue of whether the government’s proffer

of proof in support of the guilty plea

was sufficient); United States v.

Tuangmaneeratmun, 925 F.2d 797, 800 (5th

Cir. 1991) (after counsel filed an Anders

brief stating that the district court had

accepted the plea in full conformity with

the requirements of Rule 11, the court

directed counsel to address the district

court’s failure to explain the effects of

supervised release). 

 In short, we ought to proceed at a

measured pace in adjudicating this case.

We ought not take definitive action on

this appeal until we can be confident

that counsel has evaluated thoroughly the

case and made with his client a careful

determination as to whether to raise the

adequacy of the Rule 11 determination.