NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2014
Decided July 2, 2014
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐1223
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 CR 299‐1
ANTHONY MONEYHAM,
Defendant‐Appellant. James B. Zagel,
Judge.
O R D E R
Anthony Moneyham appeals his 128‐month sentence for distributing heroin in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. His appointed attorney asserts that the
appeal is frivolous and seeks to withdraw under the principles of Anders v. California,
386 U.S. 738, 744 (1967). Moneyham opposes counsel’s motion using the procedure set forth
in Circuit Rule 51(b). Counsel has submitted a brief that explains the nature of the case and
addresses the issues that a case of this kind might be expected to involve. Because the
analysis in the brief appears to be thorough, we limit our review to the subjects identified
No. 13‐1223 Page 2
in counsel’s brief and Moneyham’s response. See United States v. Bey, 748 F.3d 774, 776 (7th
Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In July 2010 Moneyham sold two grams of heroin to a confidential informant and
was charged with one count of distributing heroin. After his arrest he admitted to police
that he supervised drug sales for his gang for more than 90 days during which he daily
sold about 60 bags of heroin at $5 apiece. He pleaded guilty to selling two grams of heroin.
In its version of the offense submitted for purpose of the presentence report, the
government sought to have the uncharged heroin sales counted at sentencing. According
to the government’s estimates, each $5 bag of heroin admittedly sold by Moneyham
contained 0.1 grams of heroin. Daily sales of 60 bags for 90 days thus amounted to 540
grams that the government contended should be taken into account at sentencing. The
probation officer agreed with the government and in the presentence investigation report
accepted the government’s drug quantity figures. See U.S.S.G. § 1B1.3(a)(2). With that
quantity, Moneyham’s guideline range was 110 to 137 months in prison. The district court
adopted these calculations and sentenced Moneyham to 128 months in prison.
Counsel explains that Moneyham wishes to challenge his guilty plea as unknowing
because, despite being assured during the plea colloquy that he faced no statutory
minimum penalty, he was told at sentencing that his statutory minimum was five years.
But counsel properly concludes that any challenge would be frivolous because the district
court was correct when it told Moneyham at the colloquy that he faced no statutory
minimum penalty. See 21 U.S.C. § 841(b)(1)(C). It is true that the court’s counting of the 540
grams of heroin raises a possible issue under Alleyne v. United States, 133 S. Ct. 2151, 2155
(2013), because that quantity was not alleged in the indictment or admitted by Moneyham
in his plea. That issue involves sentencing (a clearly harmless error addressed below), and
not the adequacy of the plea hearing.
Counsel next considers whether Moneyham could challenge the drug quantity
calculation but properly determines that any challenge would be frivolous. In the district
court, Moneyham offered no evidence to dispute the government’s figure of 540
grams—accepted by the probation officer in the PSR—based on its estimate of the amount
of heroin in each of his $5 bags. The district court was free to rely upon the estimates in the
PSR to conclude that Moneyham had distributed 540 grams of heroin. See U.S.S.G. § 2D1.1
cmt. n.5 (court “shall approximate the quantity of the controlled substance. In making this
determination, the court may consider, for example, the price generally obtained for the
controlled substance, financial or other records, similar transactions in controlled
No. 13‐1223 Page 3
substances by the defendant, and the size or capability of any laboratory involved.”);
United States v. Meherg, 714 F.3d 457, 459 (7th Cir. 2013) (court may rely on information in
PSR if it is well‐supported and appears reliable); United States v. Corral, 324 F.3d 866, 872
(7th Cir. 2003) (court may determine drug quantity partially or entirely based on
defendant’s admission).
Counsel also considers whether Moneyham could challenge his sentence on grounds
that the district court unconstitutionally subjected him to an enhanced statutory penalty
based on uncharged heroin sales that were neither alleged in the indictment nor admitted
at the plea hearing. See Alleyne, 133 S. Ct. at 2155. The district court followed controlling
Supreme Court precedent at the time of sentencing and held that the sentence was subject
to a 5‐year mandatory minimum. The district judge wisely anticipated the possibility that
Alleyne, which was then pending in the Supreme Court, might modify the governing
standards. As things turned out, under the Supreme Court’s later decision in Alleyne, the
statutory penalty could be based only on the two grams of heroin that Moneyham pleaded
guilty to distributing, and not the 540 grams of uncharged additional heroin sales. Id. at
2163. Two grams would yield a statutory range with no mandatory minimum and a
maximum of 20 years in prison. See 21 U.S.C. § 841(b)(1)(c). But we agree with counsel that
Alleyne the error was harmless because the judge anticipated that ruling and said with
unmistakable clarity at sentencing that he would have imposed the same sentence even if
the 5‐year statutory minimum did not apply.
Both counsel and Moneyham consider whether he could challenge his sentence
under Alleyne because the district court counted the uncharged heroin sales as relevant
conduct under the guidelines. Any such challenge would be frivolous because Alleyne does
not apply when a judge finds facts to increase the advisory guidelines range rather than the
mandatory statutory maximum or minimum. See Alleyne, 133 S.Ct at 2163; United States v.
Volpendesto, 746 F.3d 273, 296 n.8 (7th Cir. 2014); United States v. Valdez, 739 F.3d 1052, 1054
(7th Cir. 2014). It would also be frivolous to assert that the uncharged heroin sales were not
relevant conduct because Moneyham admitted in his post‐arrest statement that he
regularly sold heroin and that the uncharged sales occurred at the same location, during
the same time period, and involved the same drug as the charged offense. See U.S.S.G.
§ 1B1.3 cmt. n.9(A); United States v. Singleton, 548 F.3d 589, 592–93 (7th Cir. 2008) (district
court properly concluded that uncharged sales of same drug at same location were relevant
conduct based on defendant’s testimony and PSR).
Counsel finally considers whether Moneyham could challenge the adequacy of the
district court’s assessment of the sentencing factors under 18 U.S.C. § 3553(a), but properly
No. 13‐1223 Page 4
concludes that this challenge would be frivolous. The district judge was not required to
discuss the § 3553(a) factors comprehensively when imposing the within‐guidelines
sentence, see Rita v. United States, 551 U.S. 338, 356 (2007), particularly because the case was
relatively straightforward, the defendant did not articulate meaningful arguments in
mitigation, and the government addressed the § 3553(a) factors at sentencing.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.