United States of America v. Carlo Watkins

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 25, 2006
Decided September 26, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1956
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLO WATKINS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 04-CR-495-23
Rebecca R. Pallmeyer,
Judge
O R D E R
After being named in a 72-count indictment charging him and 47 other
members of the Mafia Insane Vice Lords with conspiracy to distribute cocaine and
heroin throughout the west side of Chicago, Carlo Watkins pleaded guilty to one
count of possession of heroin with intent to distribute. See 21 U.S.C. § 841(a)(1). At
sentencing the district court concluded that he was responsible for selling .2 grams
of heroin to an undercover officer but could be held accountable for an additional six
kilograms as relevant conduct, resulting in a guidelines imprisonment range of 188
to 235 months. The court then sentenced Watkins to 167 months’ imprisonment
and eight years’ supervised release. Watkins timely filed notice of appeal, but
appointed counsel now moves to withdraw because she cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). For
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 06-1956 Page 2
his part, Watkins accepted our invitation to comment on counsel’s motion. See Cir.
R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our
review to the potential issues identified by counsel and Watkins. See United States
v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel first considers whether Watkins could challenge his guilty plea and
concludes that no argument is possible because the district court substantially
complied with Federal Rule of Criminal Procedure 11(b) in taking the plea. While it
is true that substantial compliance with Rule 11 would render frivolous a challenge
to Watkins’s guilty plea, see United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.
2003), we have held that lawyers seeking to withdraw under Anders should not
even explore the propriety of a guilty plea unless the defendant wants to withdraw
the plea, United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). We have no
indication that Watkins wants his guilty plea set aside. For that reason we agree
with counsel that the plea colloquy does not provide a basis for appeal.
Next Watkins asks us to consider whether he could argue that the district
court improperly increased his offense level when it found him responsible for more
than six kilograms of heroin even though the amount in the indictment was less
than the amount for which he was held responsible. Count 70, to which Watkins
pleaded, charged possession with intent to distribute approximately .1 gram of
heroin. But we do not consider this a limitation of the charge to one transaction.
See United States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005) (explaining that
sentencing courts may consider drug quantities not specified in the count of
conviction provided they are part of the same course of conduct or common scheme
or plan as the convicted offense). This court, however, would be precluded from
reviewing this issue because Watkins waived any challenge to the district court’s
relevant-conduct determination. See United States v. Jaimes-Jaimes, 406 F.3d 845,
847-48 (7th Cir. 2005). Waiver is a knowing and intentional decision to forego an
argument in the district court. Id. at 847. Once a defendant makes a strategic
decision to pursue one argument over another at sentencing, “he also waives those
arguments he decided not to present.” Id. at 848. Here Watkins’s counsel
intentionally decided not to challenge the district court’s relevant-conduct
determination. Prior to sentencing counsel filed a position paper stating that
Watkins agreed with the factual findings in his presentence investigation report
and had “no evidence to rebut the conclusions as to relevant conduct liability.”
Counsel also offered no legal argument at or before sentencing to contest the court’s
findings. And Watkins tells us in his response to counsel’s Anders brief that,
although he asked counsel to object to the relevant-conduct determination, she
declined to do so: “[S]he told me if I was to argue the things that I want to argue it
will affect my sentence. And she went in the court and did what she thought was
best, which was asked for the low end” of the guidelines range. Accordingly, any
challenge to the district court’s relevant-conduct determination would be frivolous.

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No. 06-1956 Page 3
Finally, counsel considers whether Watkins might argue that his 167-month
sentence is unreasonable. The district court sentenced Watkins after United States
v. Booker, 543 U.S. 220 (2005), and we will uphold the sentence so long as it is
reasonable, United States v. Tedder, 403 F.3d 836, 844 (7th Cir. 2005). In choosing
to impose a below-guidelines sentence, the district court considered the factors in 18
U.S.C. § 3553(a), including the rehabilitative programs available to Watkins in
prison as well as Watkins’s “sincere” remorse, and remarked that it saw no need “to
go above the minimum of the guidelines.” The court then adjusted Watkins’s
sentence below the guidelines minimum of 188 months to reflect a credit for the 21
months he served on related state charges that the court considered as relevant
conduct in determining his guidelines calculation. See U.S.S.G. § 5K2.23. We have
explained that it would be “hard to conceive of below-range sentences that would be
unreasonably high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), and
nothing in the court’s explanation would suggest such a possibility in this case.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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