Chicago, Illinois 60604 Submitted December 7, 2006 Decided December 12, 2006 Before… v. MICHAEL R. PEYLA, No. 3:04-CR-30010-007-MJR

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2006
Decided December 12, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1629
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
MICHAEL R. PEYLA, No. 3:04-CR-30010-007-MJR
Defendant-Appellant.
Michael J. Reagan,
Judge.
O R D E R
Michael Peyla pleaded guilty to conspiring to possess and distribute
marijuana, see 21 U.S.C. §§ 846, 841(a)(1), and to possessing with intent to
distribute marijuana, see id. §§ 841(a)(1), (b)(1)(B). The district court sentenced
him to 150 months’ imprisonment—one month less than the bottom of the
applicable guidelines range. Peyla has filed a notice of appeal, but his appointed
counsel informs us that he is unable to discern a nonfrivolous basis for the appeal
and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Because
counsel's supporting brief is facially adequate and Peyla has not responded to his
attorney’s motion, see Cir. R. 51(b), we review only the potential issues that counsel
has identified. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per
curiam).
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 06-1629 Page 2
As an initial matter, counsel informs us that Peyla does not want his guilty
plea vacated, so counsel appropriately avoids any discussion about the
voluntariness of the plea or the adequacy of the colloquy. See United States v. Knox,
287 F.3d 667, 670-71 (7th Cir. 2002).
As far as potential arguments for the appeal, counsel first considers whether
Peyla could challenge the two-level increase for obstruction of justice. In order to
mount a successful challenge, Peyla would have to establish that his testimony at
the sentencing hearing—which the district court discredited—was actually truthful.
Peyla testified that he first became involved in the conspiracy on its very last day of
operation and that he was responsible for only the amount of marijuana he handled
that day—less than 50 pounds—and not for the several thousands of kilograms
possessed by his co-defendants during the course of the conspiracy. He maintained
that if his barn and his auto body repair shop were used to store marijuana prior to
that date, it was without his knowledge, and he denied that he was paid for his role
in the conspiracy.
It would be frivolous for Peyla to argue that this testimony was truthful.
Three of Peyla’s co-defendants—Jack Williams, Edward Trober, and Thomas
Dukeman—testified at the sentencing hearing, and they contradicted Peyla’s story.
Their testimony indicated that the marijuana was stored in Peyla’s shop and barn
with his knowledge, that he helped load vehicles with large sums of money and
unload vehicles containing drugs, and that he was paid for his involvement.
Because Peyla lied repeatedly about matters that related directly to the offense of
conviction, the district court’s decision to impose the obstruction of justice
enhancement was justified. See U.S.S.G. § 3C1.1 cmt. nn.2 & 4(f); United States v.
Sharp, 436 F.3d 730, 736-38 (7th Cir. 2006).
Second, counsel considers whether Peyla could challenge the district court’s
refusal to allow a reduction for acceptance of responsibility and concludes that
Peyla’s obstruction of justice would render such a challenge futile. Although we
have held that some defendants who obstruct justice may nevertheless qualify in
“extraordinary cases” for a reduction for acceptance of responsibility, see U.S.S.G.
§ 3E1.1 cmt. n.4; United States v. Travis, 294 F.3d 837, 840 (7th Cir. 2002)
(“[O]bstruction-of-justice and acceptance-of-responsibility adjustments are not
always mutually exclusive.”), Peyla’s situation does not present one of these
“extraordinary cases.” The reduction may be appropriate where a de minimis
obstruction early in an investigation is followed quickly by acceptance of
responsibility. See United States v. Buckley, 192 F.3d 708, 711 (7th Cir.1999);
United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.1993). But as we have
already noted, the district court justifiably concluded that Peyla falsely minimized
his role in the offense and falsely denied the extent of his relevant conduct right up
until the moment he was sentenced.

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No. 06-1629 Page 3
Third, counsel considers whether Peyla could challenge the district court’s
finding that he was responsible for more than 1000 but less than 3000 kilograms of
marijuana, a finding which we will uphold unless clearly erroneous. See United
States v. Marty, 450 F.3d 687, 689 (7th Cir. 2006). The district court’s estimate was
conservative and amply supported by testimony from Williams, Trober, and
Dukeman. The only evidence that suggests that Peyla was responsible for a lesser
quantity is his own self-serving and discredited testimony, and thus challenging the
quantity finding on appeal would be futile.
Fourth, counsel asks whether Peyla could challenge the district court’s denial
of a minimal- or minor-role reduction, see U.S.S.G. § 3B1.2, because Peyla was less
culpable than some of his co-defendants. It is Peyla’s burden to show that he was
entitled to a reduction under § 3B1.2, see United States v. Corral, 324 F.3d 866, 874
(7th Cir. 2003), and Peyla cannot meet this burden by pointing to his false
testimony minimizing his role. The credible testimony of Peyla’s co-defendants
showed that Peyla allowed his business and barn to be used to store large
shipments of marijuana; participated in loading and unloading drugs and money;
helped to build false compartments in vehicles to conceal money and drugs; and was
paid for it. Given this level of involvement, any argument that the district court
incorrectly denied a reduction under § 3B1.2 would be frivolous. See Corral, 324
F.3d at 874 (7th Cir. 2003) (holding that § 3B1.2 reduction was not justified for
defendant who allowed apartment to be used as a “stash house”).
Fifth, counsel considers whether Peyla could challenge the district court’s
finding that he was not eligible for the “safety valve,” which allows certain
non-violent, first-time drug offenders to avoid application of statutory mandatory
minimum sentences, if they cooperate with the government before sentencing. See
18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). Peyla bears the burden of proving his
eligibility for the safety valve by a preponderance of evidence. See United States v.
Montes, 381 F.3d 631, 634 (7th Cir. 2004). Apparently, Peyla attempted to proffer
information to the government on one occasion, but the agent cut the meeting short
on the belief that Peyla was lying about his role in the conspiracy. We agree with
counsel that Peyla cannot demonstrate that he is eligible for the safety valve based
on this single unfruitful meeting with the government.
Finally, counsel considers whether it would be frivolous to challenge the
reasonableness of Peyla’s sentence in light of the sentencing factors contained in 18
U.S.C. § 3553(a). Peyla presented several arguments for a below-guidelines
sentence before the district court, but only one merits discussion. Peyla argued that
a within-guidelines sentence would create an unjust “disparity” because Peyla
would receive a greater sentence than Trober, the conspiracy’s “kingpin.” But we
agree with the district court that any disparity was “self-inflicted.” Had Peyla
admitted his role in the conspiracy—thereby presumably avoiding the enhancement

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for obstruction of justice and qualifying for a reduction for acceptance of
responsibility—his guidelines range would have been much lower. We find no error
in the district court’s refusal to adjust Peyla’s sentence downward based on this
“disparity.” After considering Peyla’s arguments and the § 3553(a) factors, the
district court sentenced him to 150 months’ imprisonment, one month below the
guidelines range. We find nothing unreasonable in that sentence.
Therefore, we GRANT the motion to withdraw and DISMISS this appeal.

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