NONPRECEDENTIAL DISPOSITION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 February 4, 2009
Decided February 5, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐1130
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 51
GERALD COLLYMORE,
Defendant‐Appellant. Matthew F. Kennelly,
Judge.
O R D E R
On the day his trial was scheduled to begin, Gerald Collymore pleaded guilty
without the benefit of a plea agreement to one count of distributing a schedule II controlled
substance. See 21 U.S.C. § 841(a)(1). On Collymore’s request the district court held a bench
trial to determine the type and weight of the controlled substance and concluded that
Collymore had distributed approximately 62.1 grams of crack. At sentencing the court
determined that, taking into account relevant conduct, Collymore was responsible for
distributing between 500 grams and 1.5 kilograms of crack. This gave Collymore a base
offense level of 34. The court increased the offense level by two points because Collymore
had obstructed justice, see U.S.S.G. § 3C1.1, and determined that he was not eligible for a
reduction for acceptance of responsibility, see id. at § 3E1.1, bringing Collymore’s offense
No. 08‐1130 Page 2
level to 36. This offense level, along with Collymore’s criminal history of III, yielded a
guidelines imprisonment range of 235 to 293 months. The court then considered the
sentencing factors in 28 U.S.C. § 3553(a), and sentenced him to 180 months’ imprisonment,
55 months below the guidelines minimum. Collymore filed a notice of appeal, but his
appointed counsel now seek to withdraw under Anders v. California, 386 U.S. 738 (1967),
because they cannot discern a nonfrivolous basis for appeal. Collymore has not accepted
our invitation to comment on counsel’s motion. See CIR. R. 51(b). Because counsel’s
supporting brief is facially adequate, 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 first tells us that Collymore wishes to have his guilty plea set aside. Thus,
counsel correctly addresses whether Collymore might argue that the district judge did not
fully comply with Federal Rule of Criminal Procedure 11(b) before accepting the guilty plea.
See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Collymore did not move to withdraw his guilty plea in the district court, and so our
review would be 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 that a guilty plea is voluntary,
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 colloquy in this case was extensive, the district judge neglected to
explicitly tell Collymore that he had the right to plead not guilty and the right to counsel.
See FED. R. CRIM. P. 11(b)(1)(B), (b)(1)(D). Neither omission, however, undermined
Collymore’s ability to understand his rights or to enter a voluntary guilty plea. The very
purpose of the colloquy was to allow Collymore to change his plea from not guilty to guilty,
so he obviously knew that he had the option to plead not guilty. See Knox, 287 F.3d at 670;
United States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001). And Collymore must have known
about his right to counsel because he had a lawyer with him during the colloquy. See
Driver, 242 F.3d at 769; United States v. Lovett, 844 F.2d 487, 491‐92 (7th Cir. 1988). Thus, we
agree with counsel that these oversights in the plea colloquy do not constitute a
nonfrivolous ground for appeal.
Counsel next question whether Collymore could challenge the district court’s denial
of his motion to suppress statements that he gave to the police. As counsel correctly point
out, however, when a defendant enters an unconditional guilty plea, he waives all non‐
No. 08‐1130 Page 3
jurisdictional errors that might have occurred prior to the plea. United States v.
Elizalde‐Adame, 262 F.3d 637, 639 (7th Cir. 2001). And nothing in the record suggests that
Collymore’s plea was anything other than unconditional.
Counsel next examine whether there is a nonfrivolous issue concerning Collymore’s
sentence. The first potential sentencing challenge they address is the district court’s
conclusion that Collymore distributed crack. We would review the district courtʹs drug‐
type finding for clear error. See United States v. Padilla, 520 F.3d 766, 769 (7th Cir. 2008). At
the bench trial, the government presented overwhelming evidence, including the testimony
of lab analysts and police officers as well as Collymore’s own statements, that the substance
at issue was crack. See id. at 771 (noting that drug type may be proved through “testimony
from people familiar with the drug” including “veteran police officers and forensic
chemists”). The only evidence Collymore presented was a confidential informant’s
affidavit, signed after the bench trial concluded, attesting that the substance was not crack.
But this testimony was directly refuted by the informant’s prior and later statements to the
police, and therefore we would not quibble with the judge’s decision to credit the
prosecution’s evidence instead.
Counsel also question whether Collymore could argue that the district court erred in
determining his relevant conduct to involve between 500 grams and 1.5 kilograms of crack.
We agree that this argument is a nonstarter because it is not clearly erroneous, see United
States v. Singleton, 548 F.3d 589, 591 (7th Cir. 2008), for a court to reasonably estimate the
amount of drugs the defendant is responsible for, see United States v. Marty, 450 F.3d 687,
690 (7th Cir. 2006). The district judge rejected the much higher quantity that the probation
officer suggested in the presentence investigation report, and instead came to his own
conclusion based on his interpretation of Collymore’s statements to police officers and the
statements of the confidential informant describing the amount of drugs Collymore sold
over a six‐month period. There is nothing in the record to suggest that the court’s
conclusion was impermissible.
Counsel next ask whether there is a nonfrivolous argument that the district court
clearly erred in increasing Collymore’s offense level by two levels for obstruction of justice.
See U.S.S.G. § 3C1.1; United States v. Dale, 498 F.3d 604, 608 (7th Cir. 2007). The court
concluded that Collymore obstructed justice by falsely testifying at a suppression hearing
that he asked for an attorney while being interviewed by the police and that he did not
dictate a statement to a police officer. The court further concluded that these lies were
material because they went to the heart of the issue to be decided at the hearing—whether
Collymore’s statements to the police were voluntary. We agree with counsel that ample
evidence supports the conclusion that Collymore obstructed justice. And although
Collymore’s obstruction was not successful because his statements to the police were not
No. 08‐1130 Page 4
suppressed, an unsuccessful attempt to obstruct justice is sufficient to warrant an upward
adjustment under § 3C1.1. See United States v. Davis, 442 F.3d 1003, 1009 (7th Cir. 2006).
Thus, any argument that the court erred in applying the increase for obstruction of justice
would be frivolous.
We also agree with counsel that it would be frivolous for Collymore to argue that the
district court clearly erred when it declined to decrease his offense level for acceptance of
responsibility. See United States v. Lister, 432 F.3d 754, 759 (7th Cir. 2005). An upward
adjustment for obstruction of justice “ordinarily indicates that the defendant has not
accepted responsibility.” U.S.S.G. § 3E1.1 cmt. n.4; see United States v. Krasinski, 545 F.3d
546, 554 (7th Cir. 2008). Furthermore, a defendant is not entitled to the adjustment merely
for pleading guilty. See U.S.S.G. § 3E1.1 cmt. n.3; Krasinski, 545 F.3d at 554. Collymore did
not even decide to plead guilty until the day he was scheduled to go to trial, which does not
suggest he accepted responsibility. See United State v. Boyle, 484 F.3d 943, 945 (7th Cir. 2007)
(noting that pleading guilty “eventually, rather than immediately” does not entitle a
defendant to a reduction for acceptance of responsibility because the government still must
bear the burden of preparing for trial).
Finally we agree with counsel that any challenge to Collymore’s 180‐month sentence,
which is 55 months below the low end of the guidelines range, would be frivolous. A
below‐guidelines sentence is presumptively reasonable. See United States v. Liddell, 543 F.3d
877, 885 (7th Cir. 2008). Moreover, the district court thoroughly analyzed the factors under
18 U.S.C. § 3553(a), considering, among other things, the nature of the crime, Collymore’s
history of drug dealing, his prior criminal record, and the disparity between sentences for
crack and powder cocaine. Counsel is unable to tell us how the resulting sentence could be
unreasonable.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.