NONPRECEDENTIAL DISPOSITION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 May 1, 2009
Decided May 1, 2009
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐2898
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‐817‐1
ROVEL FOUNTAIN,
Defendant‐Appellant. Ronald A. Guzman,
Judge.
O R D E R
Rovel Fountain was arrested after he sold 54.1 grams of crack to a confidential
informant. Fountain pleaded guilty without a plea agreement to conspiring to possess crack
with the intent to distribute and was sentenced to 125 months in prison. Fountain now
appeals, but his newly‐appointed lawyers have moved to withdraw because they cannot
discern a nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738 (1967).
Fountain has responded to our invitation under Circuit Rule 51(b) to comment on counsel’s
No. 08‐2898 Page 2
submission. We limit our review to the potential issues identified in counsel’s brief and
Fountain’s response. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Fountain has told his lawyers that he wants his guilty plea set aside, so counsel begin
by evaluating whether he could challenge the voluntariness of his guilty plea or the
adequacy of the plea colloquy. See FED. R. CRIM. P. 11. Counsel have identified several
purported omissions in the colloquy, and we begin there. Because Fountain did not move
to withdraw his guilty plea in the district court, our review would be for plain error only.
See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th
Cir. 2008).
Counsel first note that the district court did not mention that Fountain could be
subject to restitution or forfeiture. See FED. R. CRIM. P. 11(b)(1)(J), (K). The reason, though, is
obvious: there was no restitution or forfeiture involved in Fountain’s case. Counsel further
assert that the court did not tell Fountain he could be subject to a fine, see FED. R. CRIM. P.
11(b)(1)(H), but that is incorrect: at the judge’s request, the Assistant United States Attorney
informed Fountain that the maximum possible fine in his case was $4 million, and Fountain
then assured the judge that he understood the penalty. Counsel also observe that the
district court did not explicitly state that by pleading guilty Fountain would give up the
right to testify and introduce evidence in his defense. See FED. R. CRIM. P. 11(b)(1)(E). But
the judge did advise Fountain that if he went to trial he could subpoena witnesses and
testify in his own defense, or instead decline to present any evidence, including his own
testimony. The judge’s failure to say more does not rise to the level of plain error. See
United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001). We thus agree with counsel that it
would be frivolous to argue that the plea colloquy was deficient.
In his response Fountain also challenges his guilty plea, arguing that the plea was
involuntary because his attorney at the change‐of‐plea hearing was ineffective. According
to Fountain, his lawyer did not interview witnesses on his behalf, communicated with him
only four times in 27 months, and did not fully consider the merits of going to trial instead
of entering a guilty plea. Any question about counsel’s performance, however, is best
presented in a postconviction motion where a factual record may be developed. See Massaro
v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Harris, 394 F.3d 543, 557‐58 (7th
Cir. 2005).
Counsel next consider whether Fountain could argue that the district court should
have granted his trial lawyer’s motion to withdraw on the ground that Fountain had lost
confidence in his representation. To begin with, the district court never decided the motion
on its merits. Instead, after Fountain had explained that he was frustrated by trial counsel’s
failure to ask for a bond hearing and inability to make the ten‐year mandatory minimum
No. 08‐2898 Page 3
disappear, the court postponed ruling on the motion so that counsel could request a bond
hearing and file a motion arguing that the statutory minimum was unconstitutional.
Counsel then proceeded to vigorously represent Fountain without further conflict, and
neither counsel nor Fountain objected to the continued representation. Fountain, then,
effectively abandoned the motion, and even if the district court had formally denied it, there
would have been no abuse of discretion. See United States v. Ryals, 512 F.3d 416, 420 (7th Cir.
2008); United States v. Best, 426 F.3d 937, 947‐48 (7th Cir. 2005); United States v. Huston, 280
F.3d 1164, 1168 (7th Cir. 2002). Appellate counsel therefore correctly conclude that the
potential argument would be frivolous.
Counsel next examine whether Fountain could argue that the district court erred in
denying him release pending sentencing. Detention rulings, however, are appealable
independent of the underlying conviction or sentence, see 18 U.S.C. § 3145(c), so the court’s
decision is not part of the judgment from which Fountain appeals. And in any event, we
note that any potential argument that Fountain had became moot when he was sentenced.
Therefore, any appellate claim on this ground would be frivolous as well.
Finally, counsel consider potential challenges to Fountain’s sentence. The district
court began with a base offense level of 30, see U.S.S.G. § 2D1.1(c), and subtracted three
levels for acceptance of responsibility, see id. § 3E1.1, resulting in a total offense level of 27.
Based on Fountain’s criminal history category of IV, the court calculated an imprisonment
range of 100 to 125 months, but because Fountain’s offense carried a statutory minimum of
ten years’ imprisonment, see 21 U.S.C. § 841(b)(1)(A)(iii), the adjusted guidelines range was
120 to 125 months. After considering the factors set forth in 18 U.S.C. § 3553(a), the court
imposed the highest possible guidelines sentence.
Initially counsel ask whether Fountain could argue that the district court should
have relied on Kimbrough v. United States, 128 S. Ct. 558 (2007) to sentence him below the
ten‐year statutory minimum. The court, though, lacked the authority to do so. See
Kimbrough, 128 S. Ct. at 574; United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2009); United
States v. Billings, 546 F.3d 472, 474 n.1 (7th Cir. 2008). Counsel and Fountain also question
whether the district court should have imposed a lower sentence in light of conditions
during presentence detention, including the facility’s lack of drug counseling or a law
library, both of which Fountain claimed he needed. But those conditions are not so onerous
that they would warrant special consideration by the district court. See United States v.
Ramirez‐Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007).
Finally, counsel ask whether Fountain could argue that he received an unreasonable
prison sentence. But as counsel correctly point out, a sentence within a properly calculated
guidelines range is presumptively reasonable. Rita v. United States, 127 S. Ct. 2456, 2462
No. 08‐2898 Page 4
(2007); United States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). And here the district court
gave meaningful consideration to the factors set forth in 18 U.S.C. § 3553(a), including
Fountain’s extensive criminal history and his likelihood of recidivism. Counsel are unable
to articulate any reason why this case might be the exception to the presumption of
reasonableness, and so any argument to that effect would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.