United States of America v. Marcus Howard

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3456
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ARCUS H OWARD ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 01-CR-100—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED M AY 29, 2003—D ECIDED A UGUST 22, 2003
____________
Before C UDAHY , E VANS , and W ILLIAMS , Circuit Judges.
E VANS , Circuit Judge. A person claiming to be Marcus
Howard entered into an agreement with the government
under which he pled guilty to attempting to distribute more
than 50 grams of crack cocaine. He was hoping for a
sentence of 10 years or less, a calculation based in part on
the fact that “Marcus Howard” had no criminal record. The
person who said he was Marcus Howard, however, was
really Terrell Brown, who had a checkered past includ-
ing convictions in Oklahoma for possession of a dangerous
substance and in Wisconsin for second-degree reckless
homicide. Under the sentencing guidelines, given his true
criminal history, the defendant, whom we will continue to
call Howard because that is the way the judgment of

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2 No. 02-3456
conviction reads, was sentenced as a career offender to 360
months imprisonment. Not at all happy to be found out, he
asked the judge to let him withdraw his guilty plea.
The judge, Robert L. Miller of the Northern District of
Indiana, said no.
Howard appeals, claiming, of all things, that the govern-
ment breached the plea agreement by refusing to recom-
mend a reduction in his offense level for acceptance of
responsibility. He also claims that he did not understand
the consequences of his plea—that is, that he could receive
a sentence as long as 360 months.
It’s hard to discuss this case as if it involved the usual
claims that the government did not live up to its bargain
or that the judge did not properly warn a defendant about
the possible sentence he could receive. Howard under-
stood only too well the consequences of having his iden-
tity revealed. And he blamed the judge and others for not
knowing who he really was:
If you all would have did you all job, you all would have
found out who I was from the beginning. From the
beginning. So, yeah, I’m going to sit up here and ride
it on out. Because that’s what they said, “Just ride it
out.” “Just ride it out.” The government doesn’t know,
so don’t you speak upon it. That’s what I done. Know
what I’m sayin’? But then I lay up here and I still get
sentenced to—man. This is crazy, man.
The inference is that he followed someone’s advice to keep
up the deception—to “ride it out.” And then he blames
others for letting him get away with the deception for a
while. But it seems, despite his best efforts at deception,
he was unmasked and indignant about it:
Then you give me 30 years? Thirty years for this?
And you call this shit justice? How, man? How? How,
man? How? How do you sleep with yourself? . . . Man,
this is crazy.

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No. 02-3456 3
There was much more in this vein and worse. In no uncer-
tain terms, he blamed others for his predicament. One
wants to hand him a mirror.
That aside, the question is whether he should have
been allowed to withdraw his guilty plea. We review a
district court’s decision to deny a motion to withdraw a
guilty plea for an “abuse of discretion.” United States v.
Schilling, 142 F.3d 388 (7th Cir. 1998). Rule 32(e) of the
Federal Rules of Criminal Procedure authorizes a district
judge to permit the withdrawal of a guilty plea if a defen-
dant shows “any fair and just reason.” United States v.
Milquette, 214 F.3d 859 (7th Cir. 2000). We need to look
to the total circumstances surrounding the plea to deter-
mine whether the defendant was informed of his rights.
United States v. Frazier, 705 F.2d 903 (7th Cir. 1983). We
have said that defense counsel’s inaccurate prediction of
a potential sentence does not warrant the withdrawal of
a guilty plea. That is true even if the attorney failed to
inform the defendant that he would be classified as a
career offender. United States v. Barnes, 83 F.3d 934 (7th
Cir. 1996).
In this case, Howard was informed twice during his
plea hearing that he was facing at least 10 years and that
the possibility of life imprisonment existed. The judge
told him that the sentence he would receive could be
much higher than he anticipated. Ironically, only Howard
knew exactly why that might be true. Furthermore, para-
graph 9(c) of the plea agreement stated that he faced a
mandatory minimum of at least 10 years and up to life
imprisonment:
Under Count 10 of the indictment, I understand that
the statutory maximum possible penalties that may
be imposed upon me for my conviction are determined
by the amount of crack cocaine that I distributed.

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4 No. 02-3456
i. For 50 grams or more of cocaine base (crack), the
mandatory minimum penalty is ten (10) years incar-
ceration and a maximum penalty of incarceration for
life . . . .
Howard was clearly informed about dire possibilities. He
was the one who knew that he was not who he seemed to
be. Apparently, he also knew that it was to his advantage
not to have his true identity and his criminal record
revealed. It follows that the warnings about a possible
life sentence would have had special meaning to him. He
gambled and lost. But it is not possible to say that he
was blind-sided. In short, he has not shown a “fair and just
reason” to be allowed to withdraw his plea.
In this context, his claim that he should have been
granted credit for acceptance of responsibility seems
ludicrous. The government’s promise to request the credit
was not unconditional. The plea agreement says, at para-
graph 9(d):
In consideration of my plea of guilty to Count 10 of
the indictment filed in this cause and my complete
and continuing demonstration of acceptance of respon-
sibility, the United States of America and I agree
that the following NON-BINDING recommendations
will be made to the Court:
. . . .
I understand that if I fail to continue to demon-
strate acceptance of responsibility the government
will not be obligated to make any of the above non-
binding recommendations contained in paragraph 9(d)
and I will not be allowed to withdraw my guilty plea.
I further understand that the Court could sentence me
to any term of imprisonment within the applicable
sentencing guideline range[.]
Once the fact that he had been hiding his true identity
was established, it became clear that, in the most basic

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No. 02-3456 5
sense, Howard was not accepting responsibility for his
crime. His entire approach to this case was to evade as
much responsibility as possible.
The judgment of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-03

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