United States of America v. Patricia Daugherty

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006
Decided March 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICIA DAUGHERTY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 02-CR-1073-4
John W. Darrah,
Judge.
ORDER
Patricia Daugherty pleaded guilty to one count of wire fraud, 18 U.S.C.
§ 1343. Daugherty and several others participated in a scheme to purchase
merchandise from Chicago-area merchants with stolen or counterfeit checks and
then return the purchases for cash refunds. She was sentenced to 21 months'
imprisonment and two years' supervised release. She was also ordered to pay over
$36,000 in restitution and a $100 special assessment. Daugherty filed a notice of
appeal, but her appointed lawyer has moved under Anders v. California, 386 U.S.
738 (1967), to withdraw because she cannot discern a nonfrivolous argument for
appeal. We invited Daugherty to respond per Circuit Rule 51(b), and she has done
so. Since counsel's brief is facially adequate, we will discuss only those potential
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1517 Page 2
arguments mentioned in counsel's brief and Daugherty's responses. See United
States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel correctly declined to discuss whether Daugherty might argue that
her guilty plea was involuntary or otherwise taken in violation of Federal Rule of
Criminal Procedure 11 since Daugherty had not indicated that she wanted the plea
set aside. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002). In her
response Daugherty now says that she never "endorsed" her plea agreement with
the government. This potential argument is frivolous. At the plea colloquy the
district court discussed with Daugherty the specific terms of her written plea
agreement, and she acknowledged that she had read and signed it after discussing
it with her lawyer. See United States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004)
(explaining that representations made under oath during plea colloquy are
presumed truthful); United States v. Bridgeman, 229 F.3d 589, 592 (7th Cir. 2000)
(same).
The other potential issues mentioned by counsel and Daugherty are also
frivolous. Counsel evaluated whether Daugherty might challenge her sentence on
Sixth Amendment grounds because the district court engaged in fact finding in
calculating her guidelines imprisonment range. But United States v. Booker, 543
U.S. 220, 258-59 (2005), solved any Sixth Amendment problem created by
application of the sentencing guidelines by making them advisory. See also United
States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006); United States v. Della Rose, 435
F.3d 735, 736 (7th Cir. 2006). Counsel next raises the possibility that Daugherty
could argue that the district court violated Booker by treating the guidelines as
mandatory. But she correctly dismisses this potential argument because the
district court sentenced Daugherty after Booker was decided and did in fact treat
the guidelines as advisory.
Finally, Daugherty suggests that both her trial counsel and her appellate
counsel were ineffective. We have frequently said that claims of ineffective
assistance of counsel are more appropriately raised in a collateral proceeding under
28 U.S.C. § 2255 where the record can be further developed. See, e.g., United States
v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). This case is no exception.
For the foregoing reasons we GRANT counsel's motion and DISMISS the
appeal.

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