United States of America v. Darrell Cathey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2023
Decided May 26, 2023
Before
DIANE P. WOOD, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1460
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL CATHEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:20-CR-00062(1)
Manish S. Shah,
Judge.
O R D E R
Darrell Cathey pleaded guilty to possessing a firearm as a felon and possessing
with intent to distribute cocaine base and 3,4-Methylenedioxymethamphetamine
(MDMA). He appeals, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We notified Cathey of
the motion, see C IR . R. 51(b), and he did not respond. Counsel’s brief explains the nature
of the case and addresses the issues that an appeal of this kind would be expected to
involve; because counsel’s analysis appears thorough, we limit our review to the
subjects she raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1460 Page 2
Chicago police officers heard gunshots coming from a gangway between two
buildings, then saw Cathey emerge. Cathey, who was armed with a pistol in his
waistband, saw the officers and fled. The officers pursued, and Cathey ran up a
building’s exterior staircase and threw the pistol onto a nearby roof. The officers caught
up to him, searched him, and found a bag with .3 grams of MDMA and 3.8 grams of
cocaine base. They also recovered the pistol, which was warm and unloaded.
Cathey—who knew that he had multiple prior felony convictions—was charged
with possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and possessing with intent to
distribute MDMA and cocaine base, 21 U.S.C. § 841(a)(1). He decided two weeks before
trial (the day before the final pretrial conference) to plead guilty to both charges. He
filed a detailed plea declaration that provided a factual basis for his guilty pleas. At the
change-of-plea hearing, the district court conducted a colloquy under Rule 11 of the
Federal Rules of Criminal Procedure, during which Cathey stated under oath that he
had received no promises in return for his guilty pleas. The court accepted Cathey’s
plea and ordered the preparation of a presentence investigation report (PSR).
The PSR’s calculation of Cathey’s offense level under the Sentencing Guidelines
drew objections from both parties. The probation officer selected a base offense level of
20 because Cathey had a prior felony drug conviction. U.S.S.G. § 2K2.1(a)(4)(A). The
government argued for a base offense level of 24 because Cathey also had a prior
conviction for a violent felony in Illinois: aggravated battery for striking a police officer.
Id. § 2K2.1(a)(2); 720 ILCS 5/12-3.05(d)(4). In support, the government cited the four-
count information from the Illinois case. The government also objected to any reduction
for acceptance of responsibility, U.S.S.G. § 3E1.1(a)–(b), because Cathey pleaded guilty
so close to trial. Cathey, meanwhile, objected to a two-level increase under U.S.S.G.
§ 3C1.2 for recklessly creating a substantial risk of death or serious bodily injury in the
course of fleeing from a law enforcement officer. The probation officer suggested that
increase because Cathey had thrown the pistol away during the foot chase. See id.
In its sentencing memorandum, the government argued for a sentence within the
PSR’s guidelines range (92 to 115 months’ imprisonment), pointing to Cathey’s criminal
history and contending that firing the gun made this offense particularly dangerous.
Cathey responded that a below-guidelines sentence was warranted given his
disadvantaged background, future prospects, and difficult pretrial detention in a
county jail during the COVID-19 pandemic.
At the sentencing hearing, the district court first ruled that the base offense level
was 24 because Cathey’s aggravated-battery conviction was for a violent felony. In

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Illinois, battery can be committed by causing bodily harm (violent) or making insulting
or provoking contact (nonviolent). See United States v. Lynn, 851 F.3d 786, 796–97
(7th Cir. 2017); 720 ILCS 5/12-3(a). The court applied the modified categorical approach,
examined the charging document, and found that the count of conviction (Count 2)
charged Cathey with violent battery. See Lynn, 851 F.3d at 796–97 (citing Mathis v.
United States, 579 U.S. 500, 505–06 (2016)).
Next, the court calculated the total offense level as 26. First, the court applied a
four-level increase because Cathey had admitted to possessing the gun in connection
with another felony, the drug offense. U.S.S.G. § 2K2.1(b)(6)(B). Next, the court ruled
that reckless-endangerment enhancement did not apply. Finally, the court subtracted
two levels for acceptance of responsibility, id. § 3E1.1(a), but the government refused to
move for the further one-level reduction, id. § 3E1.1(b). With Cathey’s undisputed
criminal-history category (VI), the guidelines range was 120 to 150 months’
imprisonment.
After hearing from both parties, the court discussed the sentencing factors of
18 U.S.C. § 3553(a) and sentenced Cathey to 108 months’ imprisonment. The court first
concluded that Cathey had fired the gun, noting that it was emptied and warm when
recovered. Although there was no known target for the 12 shots, the court explained
that firing them was “terribly dangerous” and made “this kind of gun possession as
serious as it gets.” Next, the court recognized that although Cathey had a history of
dealing drugs and possessing guns illegally, he grew up “witnessing violence in a
disadvantaged neighborhood” and committing crimes was “an easier path to take.” The
court also said that Cathey could change, pointing to his marketable skills and the
support of his family and friends. And Cathey would be deterred from committing
future crimes, given the difficulty of being incarcerated during the pandemic.
The court also sentenced Cathey to three years’ supervised release. The court
adopted the PSR’s calculation of the policy-statement range: one to three years for the
firearm offense (a Class C felony), 18 U.S.C. §§ 924(a)(8), 3559(a)(3), and three years for
the drug offense (a Class C felony with a statutory minimum of three years), 21 U.S.C.
§ 841(b)(1)(C); 18 U.S.C. 3559(a)(3); U.S.S.G. § 5D1.2(a)(2), (c). The court also adopted the
conditions of supervised release proposed in the PSR, save one, then confirmed that
Cathey had reviewed them with his lawyer. Cathey stated that he did not object to any.
Counsel first informs us that Cathey insists that the government coerced his
guilty pleas by promising him a 77-month sentence. Because that assertion implicates
the validity of the plea, counsel properly considers arguing that Cathey should be

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No. 22-1460 Page 4
allowed to withdraw it. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012)
(counsel may refrain from discussing guilty plea only if, after consultation, defendant
does not want to withdraw it). Cathey did not move to withdraw his plea in the district
court, and so our review would be only for plain error. See United States v. Davenport,
719 F.3d 616, 618 (7th Cir. 2013).
Counsel correctly concludes that challenging the guilty plea would be frivolous.
At the change-of-plea hearing, the district court substantially complied with the
requirements of Federal Rule of Criminal Procedure 11 and ensured that Cathey’s pleas
were knowing and voluntary. Id. Moreover, at that hearing Cathey denied receiving any
promises in return for his pleas. That sworn statement is presumed true, and Cathey
would need to provide a “compelling explanation” for contradicting it on appeal.
See Thompson v. United States, 732 F.3d 826, 829–30 (7th Cir. 2013). We see none here.
Counsel also correctly concludes that Cathey could not plausibly challenge his
sentence on procedural grounds. The court began with the Guidelines, considered the
18 U.S.C. § 3553(a) factors, and explained the sentence. See Gall v. United States, 552 U.S.
38, 49–50 (2007). And challenging the court’s correct calculation of the guidelines range
would be frivolous. Id. Counsel points out that, for purposes of setting the base offense
level, the court used only the charging document to find that Cathey had been
convicted of the violent form of battery, though that multicount information does not
show which is the count of conviction. See Shepard v. United States, 544 U.S. 13, 21, 26
(2005) (permissible documents are “conclusive records made or used in adjudicating
guilt”). But Cathey did not object to the court’s reliance on the information (or argue
that he was convicted of offensive contact), so we would review only for plain error
affecting his substantial rights. F ED. R. C RIM . P. 52(b). And there was no prejudice here
because the finding was correct: The commitment order in the battery case (supplied by
counsel on appeal) shows that Cathey was indeed convicted of the violent form of
battery.
The rest of the guidelines calculations were also correct. Cathey admitted to
possessing the gun in connection with the drug offense, so the four-level increase was
proper. Because Cathey pleaded guilty shortly before trial, the government was within
its rights to refuse to move for the one-level acceptance-of-responsibility reduction.
See United States v. Davis, 714 F.3d 474, 475 (7th Cir. 2013) (“The prosecutor may
withhold such a motion for any reason that does not violate the Constitution.”). And
Cathey’s undisputed criminal-history category was appropriately based on his prior

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convictions and his possession of the gun and drugs while on parole for a state
conviction. U.S.S.G. § 4A1.1(a)–(d).
Next, counsel is correct that Cathey could not plausibly argue that his prison
sentence is substantively unreasonable. See Gall, 552 U.S. at 51. We would presume that
the below-guidelines sentence is not unreasonably high. See United States v. Dewitt,
943 F.3d 1092, 1098 (7th Cir. 2019). And, like counsel, we see nothing in the record to
rebut that presumption: The court thoroughly justified the sentence under the § 3553(a)
factors by weighing Cathey’s extensive criminal history and the dangerousness of his
firing the gun in a residential area against his difficult upbringing, promising personal
characteristics, and strong support system; the court also discussed the added difficulty
of incarceration under pandemic-related restrictions.
Counsel next considers, and appropriately rejects, a challenge to the supervised-
release term or conditions. The three-year term does not exceed the statutory maximum
and would be presumed reasonable because it is within the correctly calculated range.
See United States. v. Jones, 774 F.3d 399, 404 (7th Cir. 2014). And the court’s thorough
explanation for the overall sentence justified the term of supervised release. See United
States v. Bickart, 825 F.3d 832, 839 (7th Cir. 2016). Further, Cathey expressly waived any
challenge to the conditions. See United States v. Smith, 906 F.3d 645, 650 (7th Cir. 2018).
Finally, counsel says that Cathey would like to argue that his trial lawyer was
ineffective. As counsel explains, Cathey should raise his ineffective-assistance claim on
collateral review, where he can develop a record to support the claim. See United States
v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
We therefore GRANT the motion to withdraw and DISMISS the appeal.

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