United States of America v. John Gates

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2022
Decided February 14, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1020
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN GATES,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 3:19-cr-00136
James D. Peterson,
Chief Judge.
O R D E R
Indicted for his involvement in a drug distribution ring, John Gates pleaded
guilty to attempting to possess methamphetamine with intent to distribute it. See 21
U.S.C. §§ 841, 846. The district court sentenced him to five years’ incarceration, below
the 20-year statutory maximum, and four years’ supervised release. Gates appeals, but
his appointed counsel asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of
the case and the issues that an appeal of this kind would be expected to involve.
Because his analysis appears thorough, and Gates has not raised other potential issues,
see C IR . R. 51(b), we limit our review to the subjects that counsel discusses. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 4 --

No. 21-1020 Page 2
While investigating a methamphetamine distribution ring in Wisconsin, law
enforcement officers intercepted phone calls and text messages between Lisa Xiong, the
leader of the ring, and Gates. On one occasion, Xiong offered to sell Gates a quarter of a
pound of methamphetamine, then visited his home the next day. On several other
occasions, Xiong asked Gates for $1,000 or $2,000 to purchase methamphetamine from
her source in Minnesota; one of these times, Gates confirmed that he had people lined
up to buy the drugs. Nothing in the record definitively shows that Gates gave her this
money. Finally, on June 11, 2019, Xiong sent a text message telling Gates that she
needed “at least a stack,” or $1,000, because she was with the “big boss” in Minnesota
and “coming home with something big.” She told Gates to be ready with cash when she
arrived at his home, but she was arrested on her way there with one pound of
methamphetamine in her car. In total, the presentence investigation report attributed to
Gates over two pounds of the methamphetamine Xiong purchased between May and
June 2019.
At his combined change-of-plea and sentencing hearing, Gates raised two
objections to the calculation of his range under the Sentencing Guidelines in the
presentence investigation report. He first objected to his criminal history category of III,
arguing that two prior convictions for methamphetamine possession should not be
counted because they fell within the scope of his relevant conduct for the present
offense. See U.S.S.G. §§ 4A1.2(a), 1B1.3. The court overruled his objection because it
found that the convictions related to the possession, not distribution, of
methamphetamine and did not involve the same participants as the instant conspiracy.
Gates also objected to the inclusion in the drug quantity calculation of a pound of
methamphetamine from one of the transactions because he purchased only four ounces
on that occasion. The court overruled his objection, finding that Xiong’s purchase of an
entire pound as part of the joint scheme was foreseeable. The court then sentenced
Gates to 5 years in prison, below the guidelines range of 87 to 108 months, see U.S.S.G.
§ 5G1.3, and 4 years of supervised release, above the guidelines term of 3 years,
see U.S.S.G. § 5D1.2(c).
Counsel states that Gates “has not expressed interest in withdrawing his guilty
plea” but does not tell us, as he should have, that Gates made an informed decision
after counsel consulted with him about the risks and benefits of challenging the plea.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The omission is harmless,
however, because Gates could not raise any nonfrivolous argument about the
voluntariness of his plea. See id. He did not move to withdraw his guilty plea in the

-- 2 of 4 --

No. 21-1020 Page 3
district court, so we would review any appellate challenge for plain error. See United
States v. Schaul, 962 F.3d 917, 921 (7th Cir. 2020). And because the district court complied
with the requirements of Federal Rule of Criminal Procedure 11 during the plea
colloquy, any challenge on these grounds would be frivolous. The court ensured that
Gates understood the charges against him, the trial rights he was waiving, the
maximum penalties for his offense, and the role of the Sentencing Guidelines. See FED.
R. C RIM. P. 11(b)(1). The court further determined that Gates’s plea was supported by an
adequate factual basis and was made voluntarily. See F ED. R. C RIM. P. 11(b)(2)–(3).
Counsel first considers whether Gates could challenge his sentence as
procedurally unsound and rightly concludes that he could not. The district court
overruled both of Gates’s objections to the calculation of his guidelines range because of
its factual findings about the scope of his offense. Although we review asserted
procedural errors de novo, we would review those factual findings for clear error. United
States v. Jarigese, 999 F.3d 464, 471 (7th Cir. 2021).
To start, Gates could not raise any nonfrivolous argument about his criminal
history category. He received points for his two prior drug-possession convictions
based on the court’s determination that they did not fall within the scope of the relevant
conduct for the present offense, despite one occurring during the conspiracy. He could
not show clear error in the finding that those offenses were distinct because they did not
involve the distribution of methamphetamine or the same participants as the
conspiracy. See U.S.S.G. § 4A1.2(a); United States v. Olson, 408 F.3d 366, 373–74 (7th Cir.
2005) (possession for personal use is not relevant conduct in sentence for intent to
distribute).
Nor could Gates raise a nonfrivolous challenge to his drug quantity. The court
based its decision on the recorded conversations between Gates and Xiong, which make
clear that Gates knew that his co-conspirator, using Gates’s money, intended to obtain
several pounds of methamphetamine even if she would distribute only a quarter of a
pound to Gates per trip to her supplier. And when a defendant is involved in jointly
undertaken criminal activity, he is accountable for the actions of others that are within
the scope of and in furtherance of that activity, and reasonably foreseeable to him. See
United States v. Brown, 822 F.3d 966, 976 (7th Cir. 2016).
Counsel does not identify any other potential procedural errors in the sentence,
and we see none. As well as properly calculating the applicable guidelines range, the
district court addressed the primary arguments in mitigation, applied the sentencing

-- 3 of 4 --

No. 21-1020 Page 4
factors under 18 U.S.C. § 3533(a), and explained the chosen sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). We therefore move to the potential issues with the
sentence’s substantive reasonableness, which would receive review for abuse of
discretion. See United States v. Cunningham, 883 F.3d 690, 701 (7th Cir. 2018).
On that subject, we agree with counsel that any challenge to Gates’s sentence as
substantively unreasonable would be futile. Gates received a below-guidelines term, so
we would presume it to be reasonable, see United States v. Dewitt, 943 F.3d 1092, 1098
(7th Cir. 2019), and counsel is correct that there is nothing in the record that might rebut
that presumption. The court weighed the sentencing factors under 18 U.S.C. § 3553(a),
highlighting Gates’s criminal history, his addiction to methamphetamine, the need to
protect the community, and Gates’s status as a “relatively sophisticated coordinator of
purchases of methamphetamine” at levels that were “a step up from pure retail
dealing,” which together warranted “a fairly serious sentence.” The court also
considered, and agreed in part with, Gates’s mitigating argument that his addiction
contributed to his conduct. See United States v. De La Torre, 940 F.3d 938, 953 (7th Cir.
2019) (rejecting a challenge to the substantive reasonableness of a sentence where the
court discussed and appropriately applied the factors under § 3553(a)). Finally,
although counsel does not separately address Gates’s supervised release, the court
justified its imposition of a four-year term, rather than the statutory minimum of three
years, by considering Gates’s need for additional assistance transitioning into the
community while remaining sober.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 4 of 4 --