United States of America v. Dariel Hill

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2023
Decided April 6, 2023
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST.EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARIEL HILL,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:21CR00091-001
Sarah Evans Barker,
Judge.
O R D E R
The district court sentenced Dariel Hill to 60 months’ imprisonment and
three years’ supervised release after he pleaded guilty to possessing a firearm as a felon.
18 U.S.C. § 922(g)(1). He appeals, but his appointed counsel 1 asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s
1 The Anders brief in this case was filed by federal public defender Peter
Henderson. On March 24, 2023, he was replaced in this case by his colleague Johanna
Christiansen.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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brief explains the nature of the case and addresses potential issues that this kind of
appeal would typically involve. Hill has not responded to the motion with additional
potential issues. See C IR . R. 51(b). Because counsel’s analysis appears thorough, we limit
our review to the issues he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014).
Hill was arrested and charged with state crimes related to his possession of a
firearm. The federal government took over the prosecution and filed a criminal
complaint asserting a violation of 18 U.S.C. § 922(g)(1), after which the state dismissed
its charges and transferred Hill to federal custody. The federal government obtained an
indictment 38 days later. But this timing exceeded the 30-day requirement of the Speedy
Trial Act, so the district court dismissed the indictment. See 18 U.S.C. § 3161(b). The
court did not specify whether the dismissal was with or without prejudice.
The government promptly initiated a new prosecution and about a month later
obtained a second indictment. The court ordered that any pretrial motions be filed
within 30 days of the appearance of Hill’s counsel. Hill, however, filed no pretrial
motions within this timeframe.
Some ten months after the deadline for pretrial motions, Hill moved to dismiss
the indictment. He argued that (1) the first indictment should have been dismissed
under the Speedy Trial Act with prejudice, thus barring the current prosecution on the
second indictment; (2) he was deprived of his right to a preliminary hearing because he
was not timely brought before a judge after the first criminal complaint; (3) the delay
between his detention and the determination of probable cause by a grand jury violated
his Fourth Amendment rights; and (4) the Speedy Trial Act violation infringed on his
Fifth and Sixth Amendment rights. To excuse the untimeliness of the motion to dismiss,
Hill’s counsel explained that he sought to present legal theories proposed by Hill, who
had needed extensive time to conduct his own legal research to develop these theories.
The court denied Hill’s motion as untimely, without good cause for the delay, and
meritless.
Hill entered an unconditional guilty plea without a plea agreement. The court
sentenced him to 60 months’ imprisonment and three years’ supervised release.
In his Anders brief, counsel represents that he consulted with Hill and confirmed
that Hill does not wish to challenge his sentence or guilty plea. Thus, counsel properly
refrains from discussing those potential challenges. See United States v. Caviedes-Zuniga,

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No. 22-2400 Page 3
948 F.3d 854, 856 (7th Cir. 2020); United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012).
We agree with counsel that Hill’s guilty plea would waive any potential
challenge to the denial of Hill’s motion. An unconditional plea waives all
nonjurisdictional defects arising before the plea. United States v. Turner, 55 F.4th 1135,
1139 (7th Cir. 2022). These include defects of the sort asserted here by Hill—case-
specific constitutional defects, see id.; Class v. United States, 138 S. Ct. 798, 804–05 (2018),
and Speedy Trial Act issues. See United States v. Gaertner, 583 F.2d 308, 311 (7th Cir.
1978); United States v. Lozano, 962 F.3d 773, 779–80 (4th Cir. 2020).
Counsel considers whether Hill could challenge the constitutionality of 18 U.S.C.
§ 922(g)(1), notwithstanding his unconditional guilty plea. Counsel says that after New
York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), it is unclear what
restrictions, if any, the government may place on firearm possession. In Bruen, the
Supreme Court held that the Second Amendment requires the government to prove
that firearm statutes such as § 922(g)(1) are “consistent with this Nation’s historical
tradition of firearm regulation.” Id. at 2126. Because Hill did not challenge the statute’s
constitutionality in the district court, our review would be for plain error. FED. R. C RIM.
P. 52(b); see Greer v. United States, 141 S. Ct. 2090, 2096 (2021). According to counsel, the
only federal appellate court to address this question after Bruen determined that
§ 922(g)(1) was constitutional, Range v. Att’y Gen. U.S., 53 F.4th 262 (3d Cir. 2022), so it
would be frivolous for Hill to argue that § 922(g)(1) is plainly unconstitutional.
We agree with counsel that this argument would be frivolous, though for reasons
different from those proposed by counsel. Since counsel’s submission of his Anders
brief, the Third Circuit has vacated its decision in Range and voted to rehear the case en
banc. Range v. Att’y Gen. U.S., 56 F.4th 992 (3d Cir. 2023). In any event, after Bruen, no
appellate court has held that § 922(g)(1) violates the Second Amendment. This court, for
that matter, has acknowledged that the historical evidence is mixed about whether the
Second Amendment’s protections apply to felons and therefore has not decided the
question. See, e.g., Kanter v. Barr, 919 F.3d 437, 445–47 (7th Cir. 2019), abrogated on other
grounds by Bruen, 142 S. Ct. at 2127; United States v. Williams, 616 F.3d 685, 692 (7th Cir.
2010). Because the law is unsettled, any error, if there was one, would not be plain.
United States v. Hosseini, 679 F.3d 544, 552 (7th Cir. 2012).
Counsel next considers and rightly rejects arguing that the court erred when it
determined that the additional time Hill needed to do legal research was not good cause

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No. 22-2400 Page 4
for his untimely motion to dismiss. See FED. R. C RIM. P. 12(c)(3). Such determinations are
within the court’s discretion, see, e.g., United States v. Young, 955 F.3d 608, 615 (7th Cir.
2020), and the court appropriately explained that it was never incumbent on Hill to
perform such research because he had been represented throughout the proceedings by
counsel, who was responsible for identifying legal defenses and conducting the
necessary research.
Last, counsel considers whether Hill could raise a claim of ineffective assistance
based on his trial counsel’s failure to file the pretrial motion on time. But as counsel
explains, ineffective-assistance claims are best saved for collateral review, where an
evidentiary foundation can be developed. Massaro v. United States, 538 U.S. 500, 503–05
(2003); United States v. Cates, 950 F.3d 453, 456–58 (7th Cir. 2020).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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