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United States v. Harper

United States Court of Appeals, Seventh Circuit

August 8, 2019

United States of America, Plaintiff-Appellee,
v.
Demetrise L. Harper, Defendant-Appellant.

          Argued June 12, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 16-cr-10052 - James E. Shadid, Judge.

          Before Wood, Chief Judge, and Barrett and St. Eve, Circuit Judges.

          WOOD, CHIEF JUDGE

         Demetrise Harper appeals from the district court's denial of his motion to withdraw his plea of guilty to three charges: possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c); possession of a firearm by a felon, id. § 922(g); and possession with intent to distribute and distribution of a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(C). In moving to withdraw his plea, Harper argued that he was innocent of the first because he never "possessed" the gun, and that his plea was not knowing and voluntary because he had received ineffective assistance of counsel. We affirm the judgment.

         I

         The criminal complaint charges that Harper offered to sell crack cocaine to a confidential police informant in exchange for a gun. To facilitate the deal, the informant sent Harper a photograph of a pistol and two magazines. Harper expressed interest and was ready to trade five grams of crack cocaine for the pistol and magazines.

         On the day fixed for the deal, the informant and an undercover agent met Harper in a parking lot. The agent, who was sitting in the back seat of a truck, opened a toolbox containing the gun and handed the gun to Harper, who at that point was standing next to the truck. Harper held it, inspected it, and voiced doubts that it was the same pistol as in the photograph. Even so, he furnished most of the crack cocaine and promised the rest within an hour; he got into the front passenger seat to wait. After Harper asked for the two magazines, the agent returned the gun to the toolbox, locked it (saying that he was doing this so that the police would have "to get a warrant" to open it), and placed the toolbox in Harper's lap. He then left the truck, ostensibly to retrieve the magazines. Harper tried but was unable to open the toolbox by himself. As the informant reached over to help, the police arrived and arrested Harper. The indictment followed soon thereafter.

         A court-appointed lawyer, Rodney Nordstrom, became Harper's counsel after his first lawyer withdrew. Nordstrom also sought leave to withdraw, citing a breakdown in the attorney-client relationship. Harper complained that Nordstrom refused to review evidence or prepare for trial, but Nordstrom contested both accusations. The district court denied Nordstrom's motion, and soon after, Harper agreed to plead guilty under a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)-that is, an agreement that specified the sentence Harper would receive. The plea agreement called for 96 months' incarceration-60 months for possession of a firearm in furtherance of a drug-trafficking crime (the mandatory minimum) and 36 months for the remaining counts, possession of a firearm by a felon and possession with intent to distribute, to be served consecutively to the first sentence but concurrently to each other.

         Next came a change-of-plea hearing. There Harper told the court that he was "willing to plead," but he complained that Nordstrom had not answered his questions about the sentence. The district judge explained the sentence to Harper, specifying which parts would run consecutively to the others. The judge then asked Harper whether 96 months was an "acceptable" sentence. Harper said that it was, confirmed that he had no other questions, and asked to proceed with the plea colloquy. The judge did so, reviewing all the admonishments for a change of plea, including the rights that Harper was giving up by pleading guilty and the plea's factual basis. See Fed. R. Crim. P. 11(b).

         After the colloquy, the judge asked the parties for the applicable Sentencing Guidelines range. Nordstrom stated that he believed the range was 156 to 162 months. The judge responded that the exact range would be calculated later in the presentence report, adding that he would accept the plea agreement now if Harper was amenable to a 96-month sentence. Harper agreed to that sentence, and on that understanding the district court accepted his guilty plea.

         Three months later, Harper moved to withdraw his guilty plea, arguing that the plea was not knowing and voluntary because his lawyer was ineffective. This contention prompted Nordstrom to renew his request to withdraw as counsel; this time, the court granted the motion. Harper obtained new counsel, who added a second ground in support of the motion to withdraw the plea: actual innocence. Harper argued that he did not "possess" a firearm in furtherance of a drug-trafficking crime because the transaction "was incomplete at best," and he never had "full control of th[e] firearm."

         After hearing the government's evidence in support of the charges, the district court denied Harper's motion. It ruled that the guilty plea was knowing and voluntary because Harper confirmed during the plea colloquy that he understood the plea deal and that he was guilty of the offenses. Harper could not assert ...


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