NONPRECEDENTIAL DISPOSITION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 October 20, 2011
Decided Ocotber 21, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10‐3915
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 08‐40087‐004
BRUCE TOM PUGH, Joe Billy McDade,
Defendant‐Appellant. Judge.
ORDER
Bruce Pugh pleaded guilty to selling and conspiring to sell crack cocaine. 21 U.S.C.
§§ 841(a)(1) and 846. The district judge sentenced Pugh to 192 months’ imprisonment and
ten years’ supervised release. Despite having waived his right to appeal in his plea
agreement, Pugh brought this appeal. Pugh’s counsel now seeks to withdraw under Anders
v. California, 386 U.S. 738 (1967), because he believes the appeal would be frivolous. Pugh
opposes this motion in his Circuit Rule 51(b) response and requests the appointment of new
counsel. We confine our review to the potential issues identified in counsel’s facially
adequate brief and in Pugh’s response. United States v. Schuh, 289 F.3d 968, 973–974 (7th Cir.
2002).
No. 10‐3915 Page 2
Although counsel asserts that Pugh does not want his guilty plea set aside, Pugh
asserts in his Rule 51(b) response that his plea was involuntary, so we will consider the
validity of the plea. Because Pugh did not seek to withdraw his plea in the district court, we
would review the voluntariness of the plea for plain error. United States v. Sura, 511 F.3d
654, 658 (7th Cir. 2008). In his Rule 51(b) response, Pugh contends that the court
misinformed him during his plea colloquy that he was subject to a mandatory life sentence
because he had two prior felony drug convictions. See 21 U.S.C. § 841(b)(1)(A). In his view
he did not conspire to sell enough crack cocaine “at one time” to meet the requisite 50‐gram
threshold under § 841(b)(1)(A). But Pugh admitted in his plea agreement that he conspired
to distribute 50 or more grams of crack, and the court confirmed during the plea colloquy
that Pugh’s factual admissions supported the plea. Even if each instance he bought or sold
crack involved less than 50 grams, Pugh testified at sentencing to conspiring to distribute
cumulatively at least 50 grams, so the sentence does apply. See United States v. Rodriguez, 67
F.3d 1312, 1324 (7th Cir. 1995) (aggregating biweekly deliveries of marijuana over the course
of a year in determining quantity under § 841(b)(1)(A)); see also United States v. Resinos, 631
F.3d 886, 888 & n.1 (8th Cir. 2011). Pugh then asserts that the government did not file an
information of his past convictions that it must file in order to seek an enhanced penalty
under 21 U.S.C. §§ 841(b)(1)(A) and 851(a)(1), but he is mistaken; the government filed this
information on July 9, 2009. A challenge to the voluntariness of Pugh’s plea would therefore
be frivolous.
Counsel considers challenging Pugh’s sentence, but in light of Pugh’s appeal waiver,
this challenge would be frivolous. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.
2002). Counsel and Pugh consider challenging Pugh’s sentence for exceeding the statutory
maximum, see United States v. Vallar, 635 F.3d 271, 289 (7th Cir. 2011), but it does not exceed
the statutory maximum and so this challenge would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw. Pugh’s motion for
appointment of substitute counsel is DENIED, and the appeal is DISMISSED.