NONPRECEDENTIAL DISPOSITION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 April 16, 2009
Decided April 17, 2009
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2184
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 690‐1
ENCIO TONEV ENCEV,
Defendant‐Appellant. Elaine E. Bucklo,
Judge.
O R D E R
In 2007 Encio Encev pleaded guilty to unlawfully possessing a postal key in violation
of 18 U.S.C. § 1704. With that key Encev and his confederates pilfered checks from the mail,
altered them, and then deposited them under other names. Given the magnitude of the
scheme—and the attendant loss—the district court settled on 92 months as an appropriate
sentence. Encev filed a timely notice of appeal, but his appointed counsel has no
nonfrivolous arguments to make before this court and has asked to withdraw under Anders
v. California, 386 U.S. 738 (1967). We invited Encev to comment on the pending motion but
received no response, see CIR. R. 51(b), which leaves us with only the potential issues flagged
No. 08‐2184 Page 2
in counsel’s facially adequate supporting brief. See United States v. Schuh, 289 F.3d 968,
973‐74 (7th Cir. 2002).
Counsel first explores whether Encev might argue that the district court abused its
discretion in denying his motion to withdraw his guilty plea. At the time of his plea Encev
knew that the government had seized a hard drive in conjunction with his arrest. What he
did not know, or so he would later argue, is that the hard drive contained scanned images
of countless stolen checks. When the government sought to introduce the contents of the
hard drive as evidence of relevant conduct, Encev attempted to retract his plea. At a
hearing, the district court clarified his position:
THE COURT: . . . . It sounds like you’re saying . . . that he decided to plead
guilty not knowing that the government was going to be able to decipher a
computer that would provide additional evidence linking him to what he was
pleading guilty to?
[COUNSEL]: He contends that he had a right to see what was on that.
THE COURT: But he chose not to. He chose to plead guilty without that
evidence. I don’t know that anybody has a right to say, well—but correct me
if I’m wrong, but it seems like you’re saying that if somebody pleads guilty,
the government cannot come up with any additional evidence. . . . .
And you certainly, he certainly knew that at the time of—when he pled that
there was going to be a contested sentencing about the loss amount and that
the government was going to put in whatever amount, whatever evidence
that it had.
[COUNSEL]: But he had no idea the extent of the relevant conduct until the
government—
THE COURT: Relevant conduct hasn’t changed. It’s the proof of it.
The court eventually denied the motion, leaving Encev’s plea intact. As suspected, the
contents of the hard drive would later shape his sentence. Though Encev’s criminal history
category was only I, and his base offense level a mere six points, see U.S.S.G. § 2B1.1(a)(2),
the district court adjusted his total offense level upward to 28 after finding that he was a
leader or organizer of the fraud scheme, see id. § 3B1.1(a); that the amount of intended loss
exceeded $400,000, see id. § 2B1.1(b)(1)(H); that the offense involved more than ten victims,
No. 08‐2184 Page 3
see id. § 2B1.1(b)(2)(A); and that Encev obstructed justice by lying about his finances, his
employment history, and his attorney’s representations to him, see id. § 3C1.1.
We agree with counsel that it would be frivolous to contest the denial of Encev’s
motion. A defendant has no absolute right to withdraw a guilty plea, though a court may
permit withdrawal if the defendant provides a “fair and just” reason for doing so. United
States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008). Our review of that decision is deferential,
and we reverse only for abuse of discretion. See United States v. Bryant, 557 F.3d 489, 495
(7th Cir. 2009). Notably, “the fact that a defendant underestimated his sentence when
entering his plea is not a fair and just reason to permit him to withdraw that guilty plea.”
Bowlin, 534 F.3d at 660 (quotation marks and citation omitted). And that describes precisely
Encev’s potential challenge: he urged the district court to let him out of his guilty plea after
learning that the government had uncovered evidence to support a longer sentence.
Denying his request could not have been an abuse of discretion. All the more so because
Encev knew, at the time of his guilty plea, that the government intended to seek a higher
guidelines range.
Next counsel contemplates whether Encev could challenge, on confrontation
grounds, the district court’s admission at sentencing of hearsay testimony from a
confidential informant. But, as counsel writes, the Confrontation Clause has no application
to sentencing. See United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005). The question at
sentencing is whether “the information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a); see United States v. Rollins, 544 F.3d 820, 838 (7th
Cir. 2008). To that end the government corroborated the confidential informant’s testimony
with heaps of physical evidence, the contents of the hard drive, and Encev’s own recorded
admissions. That is enough to withstand any challenge.
Counsel also considers various challenges to the guidelines calculations, but those,
too, would be frivolous. The district court’s loss calculation of more than $400,000 is well
within “the realm of permissible computation,” see United States v. Mantas, 274 F.3d 1127,
1131 (7th Cir. 2001), given the wealth of evidence tying Encev to stolen checks totaling
approximately $539,433. Likewise, the court’s finding that Encev was a leader or organizer
under U.S.S.G. § 3B1.1(a) is unassailable. See United States v. Fox, 548 F.3d 523, 529‐31 (7th
Cir. 2009). The government offered as evidence recordings of Encev detailing the breadth of
his criminal enterprise to his henchman. By employing others and paying them for their
silence, he explained, “nobody will be able to touch me.” Finally, Encev’s points for
obstruction of justice, see U.S.S.G. § 3C1.1, were well deserved; his attempts to mislead the
court concerning the extent of his relevant conduct were legion. See United States v. Scott,
405 F.3d 615, 618 (7th Cir. 2005). So, too, would any challenge to the denial of a downward
adjustment for acceptance of responsibility fail. A defendant who obstructs justice is, absent
No. 08‐2184 Page 4
exceptional circumstances, presumed not to have accepted responsibility. See
U.S.S.G. § 3E1.1 cmt. n. 4; United States v. Davis, 442 F.3d 1003, 1009‐10 (7th Cir. 2006).
Any challenge to the substantive reasonableness of Encev’s sentence would come up
short as well. See Gall v. United States, 128 S.Ct. 586, 596‐97 (2007). His within‐guidelines
sentence is presumptively reasonable on appeal, see Rita v. United States, 127 S.Ct. 2456,
2462‐64 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and we know of
no reason why that presumption might be inappropriate here, nor does counsel.
Counselʹs motion to withdraw is GRANTED, and the appeal is DISMISSED.