United States of America v. Marco Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 17, 2014
Decided January 17, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-1327
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCO SMITH,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 08 CR 1015-2
Harry D. Leinenweber,
Judge.
O R D E R
After a police informant sought to buy crack cocaine from Marco Smith’s
codefendant, Smith and the codefendant brought 4½ ounces of powder cocaine to a
residence where two other men “cooked” it into crack for the informant. Smith was
charged with distributing a controlled substance, which the indictment describes as 50
or more grams of crack. See 21 U.S.C. § 841(a)(1). That amount of crack, given Smith’s
prior conviction for a felony drug offense, subjected him to a statutory minimum term
of 10 years’ imprisonment. See id. §§ 841(b)(1)(B); 851. Smith pleaded guilty without a
plea agreement and was sentenced to 10 years. He filed a notice of appeal, but his newly
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13-1327 Page 2
appointed lawyer believes that the appeal is frivolous and seeks to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Smith did not respond to our invitation
to comment on counsel’s motion. See CIR. R. 51(b). We limit our review to the potential
issues discussed in counsel’s facially adequate submission. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first considers whether Smith could dispute the voluntariness of his
guilty plea. Smith has told his lawyer that he wishes to raise an appellate challenge,
see United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), but our review would be
limited to plain error because in the district court he did not move to withdraw the plea,
see United States v. Vonn, 535 U.S. 55, 62-63 (2002); United States v. Davenport, 719 F.3d
616, 618 (7th Cir. 2013). During the plea colloquy Smith was told that he faced a
statutory minimum term of imprisonment and a possible life sentence, but these
admonishments were correct only if the cocaine he distributed was crack rather than
powder. Counsel thus explores the claim that Smith never admitted distributing crack.
Smith acknowledged without hesitation that he sold cocaine to the informant,
but during the plea colloquy he sought to define his crime as distributing powder
cocaine, not crack. Often the form and amount of a drug make no difference in assessing
the voluntariness of a guilty plea to § 841(a)(1) because type and quantity are sentencing
factors, not elements of the crime of distributing a controlled substance. See United States
v. Washington, 558 F.3d 716, 719 (7th Cir. 2009); United States v. Bjorkman, 270 F.3d 482,
491–92 (7th Cir. 2001). Yet before accepting a guilty plea, a district court must be
satisfied that the defendant understands the possible penalties, including any statutory
minimum term of imprisonment. FED. R. CRIM. P. 11(b)(1)(H), (I). And in this instance
Smith should have been told, but was not, that the possible statutory penalties turned
on the district court’s findings at sentencing about the drug type and quantity.
See United States v. Fernandez, 205 F.3d 1020, 1029–30 (7th Cir. 2000); United States v.
Padilla, 23 F.3d 1220, 1221 (7th Cir. 1994). Instead the parties and the district judge
proceeded as if Smith’s judicial admissions about the drug type and quantity affected
the validity of his guilty plea and not simply the possible sentence. That
misunderstanding has led appellate counsel to frame the potential claim for appeal as
whether the district court had an adequate factual basis to accept Smith’s plea. See FED.
R. CRIM. P. 11(b)(3).
The factual basis is not the issue. Smith admitted accepting $3,300 from the
informant in exchange for cocaine (in one form or another), and the district judge did
not need to hear anything more to be satisfied that the defendant knowingly distributed

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No. 13-1327 Page 3
a controlled substance in violation of § 841(a)(1). See United States v. Pellmann, 668 F.3d
918, 923 (7th Cir. 2012); United States v. Ortiz, 643 F.3d 206, 208 (7th Cir. 2011). In any
event, we would conclude that the facts conceded by Smith establish that he and his
codefendant indeed distributed well over 50 grams of crack to the informant. See United
States v. Soto-Piedra, 525 F.3d 527, 532 (7th Cir. 2008) (looking to defendant’s admissions
to determine whether offenses involved powder or crack cocaine); United States v.
Padilla, 520 F.3d 766, 769–71 (7th Cir. 2008) (finding sufficient evidence that defendant
distributed crack as opposed to another form of cocaine base). The informant wanted to
buy crack, not powder, and though Smith initially had powder, he arranged for the
substance to be converted into crack before the delivery to the informant. After
accepting the informant’s money, Smith went to retrieve the powder cocaine while his
codefendant and the informant obtained baking soda, Pyrex cookware, a scale, and
other items. The three later joined two other men at a residence where the
newcomers—with Smith and his codefendant looking on and commenting on the
process—cooked the powder into what Smith conceded was more than 50 grams of
crack. Only after the conversion was complete did the informant accept the cocaine, and
then Smith paid his codefendant a small sum for arranging the deal before everyone
went their separate ways. Thus, it would be frivolous for Smith to contend that he was
misadvised about the possible statutory penalties.
For that reason counsel also correctly concludes that an appellate challenge to
Smith’s prison sentence would be frivolous. The 10-year term is the shortest Smith
could have received given the amount of crack and his prior felony drug conviction.
See 21 U.S.C. §§ 841(b)(1)(B), 851; see also United States v. Roberson, 474 F.3d 432, 434 (7th
Cir. 2007) (holding that district courts are bound by statutory ranges).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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