United States of America v. William N. Staples

* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 11, 2007*
Decided April 18, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-4037
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM N. STAPLES,
Defendant-Appellant.
Appeal from the United States
District Court for the Eastern
District of Wisconsin
No. 05-CR-90
Rudolph T. Randa,
Chief Judge.
O R D E R
From 1994 to 2005, William Staples collected social security benefits under
both his own name and an alias. Authorities investigating this fraud executed
search warrants at two of Staples’s properties and found five rifles. Staples
ultimately pleaded guilty to wire fraud, 18 U.S.C. § 1343, and possession of a
firearm by a felon, id. § 922(g)(1). The district court, applying the Armed Career
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 05-4037 Page 2
Criminal Act (ACCA), id. § 924(e), sentenced Staples to 200 months’ imprisonment.
Staples, who is pro se on appeal, principally argues that the district court
erroneously sentenced him as an armed career criminal and miscalculated his
criminal history score. We affirm.
The probation officer recommended that Staples be sentenced to at least 15
years’ imprisonment under the ACCA based on four prior convictions in Wisconsin:
(1) a 1976 conviction for attempted first-degree murder, (2) a 1977 conviction for
assault by a prisoner, (3) a 1979 conviction for assault on a correctional officer, and
(4) a 2000 conviction for possessing cocaine with intent to distribute. The sentences
for these convictions ranged from 18 months to 14½ years. Parole revocations
stemming from the first three convictions resulted in Staples’s release from custody
in 1989.
At sentencing defense counsel objected that Staples could not be sentenced
under the ACCA because his prior convictions were not alleged in the indictment or
proven to a jury beyond a reasonable doubt. Counsel further speculated that
Staples’s civil rights were “likely restored” following the three convictions for
attempted murder and assault, and thus they should not qualify as predicate
offenses, see 18 U.S.C. § 921(a)(20). Counsel also adopted several of Staples’s pro se
objections to the probation officer’s guidelines calculations.
The district court overruled all of the objections. The court concluded that
Staples had failed to present evidence that his civil rights were, in fact, restored.
After reviewing the judgments of conviction, the court held that Staples qualified
for sentencing under the ACCA, calculated a guidelines imprisonment range of 180
to 210 months, and imposed a 200-month sentence.
Staples starts with four meritless attacks on the application of the ACCA.
First, he renews his contention that the district court erroneously considered his
prior convictions since they were not alleged in the indictment or proven to a jury
beyond a reasonable doubt. The Supreme Court has held that these safeguards do
not apply to recidivism enhancements, which the ACCA is, see Shepard v. United
States, 544 U.S. 13, 24 (2005); Taylor v. United States, 495 U.S. 575, 602 (1990), and
“we are not authorized to disregard the Court's decisions,” United States v.
Browning, 436 F.3d 780, 780-82 (7th Cir. 2006). Second, Staples contends that the
district court erred when it counted his conviction for “attempted first-degree
murder” since, he claims, there is no such crime in Wisconsin. This argument
amounts to a collateral attack on that particular conviction, and federal sentencing
courts are not the place for such attacks. See Custis v. United States, 511 U.S. 485,
497 (1994); United States v. Dahler, 171 F.3d 441, 443 (7th Cir. 1999). And in any
event, Wisconsin has long recognized the crime of attempted first-degree murder,
Wis. Stats. §§ 940.01, 939.32(2) (1975); Norwood v. State, 246 N.W.2d 801, 807, 814

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No. 05-4037 Page 3
(Wis. 1976). Third, Staples contends that his 1976, 1978, and 1979 convictions were
“closely related” and therefore should have been counted only once. The three
offenses are separated by at least ten months each, involved different victims, and
penalized different conduct; the assertion that they weren’t “committed on occasions
different from one another” is frivolous. See 18 U.S.C. § 924(e)(1); United States v.
Morris, 293 F.3d 1010, 1014 (7th Cir. 2002); United States v. Hudspeth, 42 F.3d
1015, 1021-22 (7th Cir. 1994) (en banc). Fourth, Staples contends that his civil
rights “could [ ] very well” have been restored once his convictions from the 1970s
were discharged, and therefore the district court erroneously counted them as
predicate offenses. See 18 U.S.C. § 921(a)(20). But because Staples presented no
evidence that his rights were restored, this argument also fails. See United States
v. Vitrano, 405 F.3d 506, 510 (7th Cir. 2005).
Staples next contends that the district court made several mistakes when
calculating his criminal history score. These arguments too must fail. The district
court assigned Staples five more points than necessary to place him in the highest
criminal history category, see U.S.S.G. Ch. 5, Pt. A, so only his arguments about the
nine points he received for the convictions in the 1970s could reduce his guidelines
imprisonment range. Staples first contends that the three convictions are too old to
be counted, but he is wrong. These convictions count so long as Staples was
incarcerated within 15 years of the commencement of his social security fraud. See
U.S.S.G. §§ 4A1.1 cmt. n.1, 4A1.2(e)(1). Staples admitted that his scheme began in
1994, and he was last released, following parole revocations, five years earlier in
1989. See U.S.S.G. § 4A1.2(k)(2)(B)(i) (directing use of date of last release following
parole revocation to calculate criminal history points). Staples also argues that his
three convictions from the 1970s were “related” and should have counted as one
crime for purposes of the guidelines, see U.S.S.G. § 4A1.2(a)(2), but this contention
fails because there is no evidence that the crimes were jointly planned or that one of
the crimes entailed the commission of the others. See United States v. Brown, 209
F.3d 1020, 1023 (7th Cir. 2000). Lastly, Staples argues that considering these
convictions violates the Ex Post Facto Clause since they occurred before the
guidelines were in effect. But the sentences under review here punish his fraud
and gun possession, which occurred long after the guidelines became effective, not
his conduct in the 1970s. See Nichols v. United States, 511 U.S. 738, 747 (1994)
(“Enhancement statutes, whether in the nature of criminal history provisions such
as those contained in the Sentencing Guidelines, or recidivist statutes that are
commonplace in state criminal laws, do not change the penalty imposed for the
earlier conviction.”).
Finally, Staples argues that trial counsel was ineffective because she only
reluctantly adopted his pro se objections, instead of raising them on her own. We
note that a “defendant’s lawyer has, it is certainly true, no duty to make a frivolous
argument.” United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003). But we will

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not address this claim here because a claim of ineffective assistance of counsel is
better raised in a collateral proceeding under 28 U.S.C. § 2255. See Massaro v.
United States, 538 U.S. 500, 504 (2003); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
Staples remaining arguments do not merit discussion, and for the foregoing
reasons, we AFFIRM.

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