NONPRECEDENTIAL DISPOSITION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 December 11, 2008
Decided December 16, 2008
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐1852
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. 07‐CR‐20052‐MPM‐DGB‐01
ORLANDO HILL, Michael P. McCuskey,
Defendant‐Appellant. Chief Judge.
O R D E R
In March 2007, federal and state agents executed a search warrant at Orlando Hill’s
residence in Kankakee, Illinois. During the search they arrested Hill and found, among
other things, approximately 45 grams of crack, two semiautomatic weapons, and a ballistic
vest. The next day, after receiving the Miranda warnings, Hill confessed that he purchased
63 grams of crack the day before his arrest.
Hill, who had a previous conviction for distributing drugs, pleaded guilty to one
count of possessing with intent to distribute a controlled substance, see 21 U.S.C. § 841(a)(1),
No. 08‐1852 Page 2
and one count of possessing a firearm to further a drug crime, see 18 U.S.C. § 924(c). Prior to
sentencing, Hill filed a pro se motion to withdraw those pleas on the ground that his lawyer
was ineffective in not challenging the validity of the search warrant, but after the district
court appointed new counsel, Hill withdrew that motion. The court sentenced Hill to 10
years for possessing the drugs, the minimum allowed given the quantity of crack and his
prior drug conviction, see § 841(b)(1)(B)(iii), and an additional 5 years for possessing the
weapon in furtherance of a drug‐trafficking crime, the minimum allowed under
§ 924(c)(1)(A)(i).
Hill filed a notice of appeal, but his appointed lawyer seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous issue
to pursue. Counsel’s supporting brief is facially adequate, and Hill did not respond to our
invitation under Circuit Rule 51(b) to comment on counsel’s submission. We limit our
review to the potential issues identified in counsel’s brief. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002).
Counsel considers whether Hill could challenge the voluntariness of his guilty pleas,
though he does not say whether Hill would want to pursue such a claim. See United States v.
Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002). Regardless, any potential challenge to the
voluntariness of the pleas would be frivolous. As counsel observes, because Hill ultimately
stood by his guilty pleas and abandoned his pro se motion to withdraw them, our review
would be limited to a search for plain error, a standard that Hill could not satisfy. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal‐Tamayo, 467 F.3d 630,
633 (7th Cir. 2006). To ensure that a guilty plea is voluntary, the district court must conduct
a colloquy that substantially complies with the requirements of Federal Rule of Criminal
Procedure 11. See United States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003). Counsel has not
identified any error or omission in the district court’s plea colloquy, and our own review of
the record confirms that the district court’s exhaustive and thorough exchange with Hill
substantially complied with the dictates of Rule 11.
Counsel next considers whether Hill should argue on appeal that his first lawyer was
ineffective for failing to challenge the constitutionality of the search of Hill’s residence. As
counsel recognizes, Hill waived any challenge to the constitutionality of the search by
pleading guilty. See United States v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007); United States v.
Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000). And Hill similarly waived any claim that his
counsel was ineffective for failing to contest the constitutionality of the search because he
raised and then abandoned that argument in the district court. See United States v.
Cunningham, 405 F.3d 497, 502 (7th Cir. 2005); Schuh, 289 F.3d at 976.
No. 08‐1852 Page 3
Counsel also considers, but rejects as frivolous, a challenge to the reasonableness of
Hill’s 180‐month prison sentence, which counsel concedes was the minimum allowed under
§ 841(b)(1)(B)(iii) and § 924(c)(1)(A)(i). The district court may sentence a defendant below
the statutory minimum only in two circumstances, United States v. Cooper, 461 F.3d 850, 856
(7th Cir. 2006); United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005), and as counsel
recognizes, neither exception applies to Hill’s case. The district court was prohibited from
considering whether Hill deserved a lower sentence for providing substantial assistance
because the government did not move to release the defendant from the statutory minimum
under 18 U.S.C. § 3553(e). United States v. McMutuary, 217 F.3d 477, 487 (7th Cir. 2000).
And Hill’s only other avenue for relief from the statutory minimum, the “safety‐valve”
exception, does not apply because his crime involved the possession of a firearm. See 18
U.S.C. 3553(f)(2); United States v. Brack, 188 F.3d 748, 762 (7th Cir. 1999). Indeed, Hill was
fortunate to receive the sentence imposed. As the district court noted, had the government
charged Hill with possessing over 50 grams of crack—an amount he admittedly possessed
the day before his arrest—his guilty pleas would have subjected him to mandatory
consecutive terms totaling at least 300 months. See 21 U.S.C. § 841(b)(1)(A)(iii); 18 U.S.C.
§ 924(c)(1)(A)(i).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.