NONPRECEDENTIAL DISPOSITION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 October 8, 2008*
Decided November 13, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1919
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
07‐CR‐257
FRED HANNIBLE, JR.
Defendant‐Appellant. Lynn Adelman, Judge.
O R D E R
Fred Hannible, Jr., pleaded guilty to possession of a firearm by a felon in violation of
18 U.S.C. §§ 922(g)(1), 924(a). The district court sentenced him to 84 months’ imprisonment,
the bottom of the applicable guidelines range. Hannible filed a notice of appeal, but his
*
After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the records. See FED. R.
APP. P. 34(a)(2).
No. 08‐1919 Page 2
appointed counsel has moved to withdraw because he cannot discern a nonfrivolous basis
for the appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s supporting brief is
facially adequate, and Hannible has not responded to our invitation under Circuit Rule
51(b) to comment on counsel’s submission. We therefore consider only those potential
issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first considers whether Hannible might challenge his guilty plea. Counsel,
however, has not informed us whether Hannible wants his plea vacated. As we have made
clear, counsel should not address this potential challenge unless he has first consulted with
his client and determined that the client wants to withdraw the guilty plea. See United States
v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002). Although this was an oversight, it makes no
difference to the outcome in this case, because any challenge to Hannible’s guilty plea
would be frivolous. Hannible did not move to withdraw his guilty plea in the district court,
and so our review would be only for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). To ensure the voluntariness
of a guilty plea, the district court is required to conduct a plea colloquy that substantially
complies with the requirements of Rule 11 of the Federal Rules of Criminal Procedure. FED.
R. CRIM. P. 11(b)(1). Under the plain‐error standard a defendant must show that an error or
omission in the plea colloquy affected his substantial rights, meaning that, but for the error,
he would not have pleaded guilty. See Griffin, 521 F.3d at 730.
Although the district court conducted an otherwise thorough Rule 11 colloquy,
counsel has identified one omission, and we have found two more. These omissions,
however, did not affect Hannible’s substantial rights. As counsel notes, the district court did
not warn Hannible that the government could use his sworn statements in a prosecution for
perjury or false statement, see FED. R. CRIM. P. 11(b)(1)(A), but Hannible does not contend
that he lied during the plea colloquy or that he is facing any actual or threatened
prosecution for perjury, see United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003); United
States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). The district court also neglected to tell
Hannible that his right to counsel – including an entitlement to appointed counsel if
necessary – would extend not just to trial but to “every other stage of the proceeding.” See
FED. R. CRIM. P. 11(b)(1)(D). But Hannible was represented by appointed counsel
throughout the proceedings. See United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988).
Finally, the district court failed to advise Hannible that he could compel witnesses to testify
at trial, though the court did say that Hannible could present a defense. See FED. R. CRIM. P.
11(b)(1)(E). Yet Hannible knew about his right to compulsory process because it is spelled
out in the plea agreement. See United States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001). We
agree with counsel that these minor shortcomings in the plea colloquy do not add up to a
nonfrivolous ground for appeal.
No. 08‐1919 Page 3
Counsel next considers whether Hannible might challenge his prison sentence.
Counsel initially suggests that the district court erred by failing to address the sentencing
guidelines before analyzing the factors set out in 18 U.S.C. § 3553(a). See Gall v. United
States, 128 S. Ct. 586, 596 (2007). We do not share counsel’s view of the record. A sentencing
court is required to begin by correctly calculating the guidelines range, Gall, 128 S. Ct. at
596, but that is what the district court did in this case. At the outset of Hannible’s sentencing
hearing, the court adopted the probation officer’s guidelines calculations without objection
from either party, and so counsel is mistaken in thinking that the court jumped straight to §
3553(a) without evaluating the pertinent guidelines.
Counsel also appears to consider a challenge to the reasonableness of the prison term
imposed by the district court. Hannible’s sentence falls at the low end of the advisory
guidelines range and is therefore presumptively reasonable. See Rita v. United States, 127 S.
Ct. 2456, 2462 (2007); United States v. Hendrix, 509 F.3d 362, 376 (7th Cir. 2007). The district
court appropriately treated the sentencing guidelines as advisory and considered the
relevant factors under § 3553(a), including the nature of the offense, deterrence and safety
concerns, and Hannible’s character, criminal history, and vocational needs. See United States
v. Booker, 543 U.S. 220 (2005); United States v. Wachowiak, 496 F.3d 744, 747‐48 (7th Cir. 2007).
Counsel is unable to offer any reason why Hannible’s sentence would be unreasonable, and
neither can we.
Accordingly, Counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.