NONPRECEDENTIAL DISPOSITION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 10, 2009
Decided December 11, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐1084
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 CR 351‐1
ALPHONSO LEBRON,
Defendant‐Appellant. James F. Holderman,
Chief Judge.
O R D E R
Alphonso Lebron pleaded guilty to possessing and distributing a controlled
substance. See 21 U.S.C. § 841(a)(1). At sentencing the district court found that the
substance was crack and sentenced Lebron to 188 months’ imprisonment. Lebron filed a
notice of appeal, but his newly appointed lawyers have concluded that the case is frivolous
and move to withdraw. See Anders v. California, 386 U.S. 738 (1967). Lebron opposes
counsel’s motion. See CIR. R. 51(b). We limit our review to the potential issues addressed in
counsel’s facially adequate brief and in Lebron’s response. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002).
No. 09‐1084 Page 2
Lebron sold cocaine to a confidential informant and an undercover police officer and
was charged with violating § 841(a)(1). The indictment described the substance as “cocaine
base (commonly known as ‘crack cocaine’).” Lebron pleaded guilty, but before sentencing
he fired his attorney and, through new counsel, successfully moved to withdraw his plea on
the ground that he did not get an opportunity to review all of the discovery in the case.
More than a year later, Lebron again pleaded guilty to the charge but informed the district
court that, for sentencing purposes, he contested the characterization of the cocaine as crack.
A government chemist, the undercover police officer, and the informant who
arranged the transaction all testified at sentencing that the cocaine Lebron sold was crack,
not powder. A defense chemist faulted the reliability of the tests conducted by the
government chemist, but conceded on cross‐examination that the substance looked like
crack and “more probably than not” was crack. Lebron testified that he delivered powder
cocaine to the informant and speculated that the informant had “cooked” the powder into
crack before passing it on to the undercover officer, but in his plea agreement Lebron had
admitted that all three men were together in the same car when the drugs he gave the
informant were handed over to the officer. The district court disbelieved Lebron and found
that the substance was crack, which, the court added, Lebron had “known all along.” The
court then applied an upward adjustment for obstruction of justice, U.S.S.G. § 3C1.1, and
declined to give Lebron credit for acceptance of responsibility, id. § 3E1.1.
Lebron told appellate counsel that he does not want his guilty plea vacated, and so
they properly refrained from discussing the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002). But
Lebron tells us in his response to counsel’s motion that he does want the plea set aside
because, he says, it was coerced by the ineffective assistance of his former attorney.
According to Lebron, his attorney advised him that pleading guilty would assure him a
reduction for acceptance of responsibility even if he contested the drug type at sentencing.
And because he relied on counsel’s advice regarding the consequences of contesting the
drug type, Lebron continues, his guilty plea was involuntary. Lebron’s account of events,
however, conflicts with the assurances he gave under oath when entering the plea. As the
district court explained to Lebron before accepting his plea, a reduction for acceptance of
responsibility was not guaranteed, and Lebron told the judge that he fully understood. He
further assured the judge that his attorney had not made any promises regarding sentencing
and acknowledged that the final sentencing decision belonged to the court. We would
presume those representations to be true. United States v. Linder, 530 F.3d 556, 564 (7th Cir.
2008); Schuh, 289 F.3d at 975. And to the extent that Lebron is unsatisfied with an aspect of
counsel’s performance not apparent from this record, claims of ineffective assistance are
better suited to a collateral action under 28 U.S.C. § 2255 so that a fuller record can be
No. 09‐1084 Page 3
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).
As for Lebron’s prison sentence, counsel evaluate and reject as frivolous four
potential challenges. The first is whether Lebron could dispute the district court’s finding
that he sold crack, a question that we would review only for clear error. See United States v.
Padilla, 520 F.3d 766, 769 (7th Cir. 2008). The undercover officer and informant both testified
that they are familiar with crack and that the substance Lebron gave them was crack. The
government’s chemist testified that the substance was cocaine base and sodium bicarbonate,
and even the defendant’s chemist agreed that the cocaine “more probably than not” was
crack. Any contention that this evidence was too little to establish by a preponderance that
the substance was crack and not some other form of cocaine base would be frivolous. See
U.S.S.G. 2D1.1(c), Note (D); United States v. Betts, 576 F.3d 738, 742‐43 (7th Cir. 2009); United
States v. Lake, 500 F.3d 629, 634 (7th Cir. 2007).
The second potential challenge is the district court’s application of a two‐level
increase for obstruction of justice. Although a simple denial of guilt or testimony that is the
result of confusion, mistake, or faulty memory may not serve as the basis for a finding of
obstruction, an increase under § 3C1.1 is warranted if a defendant provides materially false
testimony in a willful attempt to obstruct or impede the investigation, prosecution, or
sentencing of the offense. U.S.S.G. § 3C1.1; United States v. Dunnigan, 507 U.S. 87, 94 (1993);
United States v. Bryant, 557 F.3d 489, 501 (7th Cir. 2009). Lebron’s testimony at sentencing
provided ample basis for this increase. The government introduced substantial evidence
showing that Lebron sold crack, and despite his insistence that the substance was powder
cocaine, the court concluded that Lebron “knew all along” it was crack. And since Lebron’s
testimony went to the key issue at sentencing, it was material. See United States v. Bermea‐
Boone, 563 F.3d 621, 627 (7th Cir.), cert. denied, 78 U.S.L.W. 3207 (2009). Lebron’s lawyers are
thus correct in concluding that an appellate claim about § 3C1.1 would be frivolous.
The same is true about acceptance of responsibility, another of the potential
sentencing arguments counsel discuss but reject. A defendant is not entitled to the
adjustment merely for pleading guilty. U.S.S.G. § 3E1.1 cmt. n.3; United States v. Krasinski,
545 F.3d 546, 554 (7th Cir. 2008). And only in the “extraordinary” case is a defendant who
obstructs justice still eligible for acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n.4;
Krasinski, 545 F.3d at 554; United States v. Boyle, 484 F.3d 943, 944 (7th Cir. 2007). This is not
one of those “extraordinary cases.” After admitting the true facts during the plea colloquy,
Lebron falsely denied his conduct at sentencing, and in light of the district court’s finding
that he intentionally attempted to obstruct justice, we could not say that the court clearly
erred by denying him a two‐point reduction for acceptance of responsibility.
No. 09‐1084 Page 4
Finally, counsel consider characterizing Lebron’s prison sentence as unreasonable
based on the different sentencing consequences for crack and powder cocaine. In Kimbrough
v. United States the Supreme Court held that a sentencing judge may conclude, even in a
“mine‐run case,” that the crack‐to‐powder ratio underlying the base offense levels in
U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for the particular
defendant. 552 U.S. 85, 109‐10 (2007); see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.
2008). Yet the district court understood that it could disagree with the ratio in the
guidelines, but concluded that the offense levels in § 2D1.1 were appropriate “in this
instance.” The court then sentenced Lebron to 188 months, the bottom of the correctly
calculated range of 188 to 235 months. As counsel note, Lebron’s sentence is therefore
presumptively reasonable. See Rita v. United Sates, 551 U.S. 338, 347 (2007); United States v.
Turner, 569 F.3d 637, 640 (7th Cir. 2009). Counsel can identify no other reason why Lebron’s
sentence would be unreasonable, nor can we.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.