United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 5, 2012

Decided January 31, 2013

Before

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 11‐3733

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

DEANDRE D. BROWN,

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 4:09CR40082‐002‐JPG

J. Phil Gilbert,

Judge.

O R D E R

Deandre Brown pleaded guilty to two counts of conspiracy to distribute controlled

substances (heroin and cocaine), 21 U.S.C. § 846, and was sentenced to 262 months in

prison, the bottom of the calculated guideline range. Brown filed a notice of appeal, but his

appointed counsel has concluded that the appeal is frivolous and moves to withdraw under

Anders v. California, 386 U.S. 738 (1967). Brown opposes his lawyer’s motion. See Cir. R.

51(b). We limit our review to the potential issues identified by counsel’s facially adequate

brief and Brown’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

Counsel first considers whether Brown could challenge his 262‐month sentence.

Counsel correctly notes, however, that Brown withdrew the objections he had raised at

sentencing (to the presentence report’s relevant conduct findings and recommended

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐3733 Page 2

enhancement for firearm possession) and that the sentence was properly calculated. As

counsel also recognizes, we would presume Brown’s within‐guidelines sentence to be

reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007), and counsel cannot identify any

reason to disturb that presumption. We note that the district court adequately evaluated the

factors listed in 18 U.S.C. § 3553(a), including Brown’s history and characteristics—noting

among other things his lengthy criminal record and need for medical care to treat his

cocaine and heroin addiction.

Counsel also relays that Brown told him that he did not wish to challenge his guilty

pleas, and so counsel properly omits from his brief any discussion of the plea colloquy or

the voluntariness of Brownʹs guilty pleas. See United States v. Konczak, 683 F.3d 348, 349 (7th

Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But Brown’s response

suggests that he now wishes to challenge the pleas on grounds that the district judge

violated Federal Rule of Criminal Procedure 11(c)(1) by participating in plea negotiations

with Brown’s attorney, the prosecutor, and Brown’s mother. We find nothing in the record

of this case to support the notion that this long‐experienced district judge played a role in

plea negotiations, and Brown does not point to any potential evidence of that in his

submission to this court. See United States v. Cannady, 283 F.3d 641, 647 (4th Cir. 2002)

(refusing to entertain Rule 11 judicial participation argument on direct appeal when record

did not show alleged communication between judge and government). If Brown wishes to

pursue this argument, it would be better addressed in a collateral proceeding so that a more

complete record could be developed. See Massaro v. United States, 538 U.S. 500, 504–05

(2003); Murchu v. United States, 926 F.2d 50, 56–57 (1st Cir. 1991) (reviewing denial of

collateral motion alleging off‐record judicial participation in plea negotiation).

Brown also proposes arguing that the court incorrectly held him accountable for

distributing 100 grams of heroin, while the presentence investigation report (adopted by the

court) assessed his conduct relevant to the offense at 84 grams. This argument is frivolous.

Not only did Brown at his change‐of‐plea hearing acknowledge a factual basis for 100

grams, but the district judge also made clear in the plea colloquy that he and the probation

officer would independently calculate the drug quantities. See United States v. Bowlin, 534

F.3d 654, 660 (7th Cir. 2008). In any event Brown’s advisory guideline range would have

been the same with or without inclusion of the heroin: the crack and powder cocaine

amounts were enough to reach his calculated base offense level, after the probation officer

had converted them into their marihuana equivalents for a total of more than 3,700

kilograms. See U.S.S.G. § 2D1.1(a)(1), (c), cmt. n.10(D).

Brown last proposes arguing that the district court should have given him the benefit

of the Fair Sentencing Act’s reduction of the disparity between crack and powder cocaine

sentences. Brown did in fact benefit from the Act, as it directed the United States Sentencing
No. 11‐3733 Page 3

Commission to promulgate amendments to the guidelines that lowered the base offense

level for crack cocaine offenses by two levels. See generally U.S.S.G. app. C, vol. III

(Amendment 748) (explaining amendments to § 2D1.1).

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED.