United States of America v. Menom L. Powless-Brown

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2023
Decided February 23, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 21-3381
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MENOM L. POWLESS-BROWN,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-CR-67
William C. Griesbach,
Judge.
O R D E R
After shooting a man during an altercation on the Menominee Indian
Reservation, Menom Powless-Brown pleaded guilty to assault with intent to commit
murder, 18 U.S.C. § 113(a)(1), and was sentenced to 10 years in prison. 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). Counsel’s brief explains the nature of the
case and addresses potential issues that an appeal of this kind might involve. Because
her analysis appears thorough, and Powless-Brown has not responded to counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-3381 Page 2
motion, see C IR . R. 51(b), we limit our review to the issues counsel discusses. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Powless-Brown was initially indicted on three counts: (1) assault with a
dangerous weapon, 18 U.S.C. § 133(a)(1); (2) discharging a firearm during that assault,
id. § 924(c)(1)(A)(iii); and (3) assault with intent to commit murder, id. § 113(a)(1). But he
agreed to plead guilty to the latter charge in return for the dismissal of the first two,
allowing him to avoid a 10-year statutory minimum for the firearms charge. See id.
§ 924(c)(1)(A)(iii).
Counsel informs us that Powless-Brown wishes to challenge his guilty plea,
see United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), but she rightly concludes
that this challenge would be frivolous. Because Powless-Brown did not move to
withdraw his plea in the district court, we would review only for plain error,
United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013), and the record reflects no
such error here. True, as counsel notes, the judge during the plea colloquy did not
strictly track the language of Rule 11(b)(2) of the Federal Rules of Criminal Procedure
by asking if Powless-Brown’s plea resulted from “force.” But this omission would be
harmless, since the plea agreement specified that he was pleading “freely and
voluntarily” and that “no threats . . . or other inducements” motivated the plea. Under
these circumstances, we see nothing in the record to suggest that the omission might
have affected Powless-Brown’s substantial rights, see FED. R. C IV. P. 11(h), or rendered
his conviction a miscarriage of justice, see United States v. Driver, 242 F.3d 767, 771
(7th Cir. 2001). The judge otherwise conducted a thorough plea colloquy that
substantially complied with Rule 11 of the Federal Rules of Criminal Procedure.
Counsel next rejects arguing that Powless-Brown could raise a nonfrivolous
challenge to his sentence on procedural grounds. The judge correctly calculated a
guidelines range of 78 to 97 months’ imprisonment based on a total offense level of 28
and a criminal history category of I. (The parties agreed the applicable base level was
27—the lowest possible, see U.S.S.G. § 2A2.1(a)(2)—to which the judge applied a four-
level enhancement for the victim's permanent injury, see id. § 2A2.1(b)(1)(A), and a
three-level reduction for acceptance of responsibility, see id. § 3E1.1(a).) The judge also
addressed Powless-Brown’s arguments in mitigation, applied the sentencing factors
under 18 U.S.C. § 3553(a), and explained the sentence, including the upward departure
from the guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007).

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No. 21-3381 Page 3
Nor could Powless-Brown successfully challenge the reasonableness of his
10-year prison sentence. We do not presume above-guidelines sentences to be
unreasonable, see United States v. Gill, 824 F.3d 653, 665 (7th Cir. 2016), and here the
judge adequately explained the sentence with reference to the statutory sentencing
factors, especially the seriousness of the offense and the need to deter gun violence. Id.;
18 U.S.C. § 3553(a)(2)(A)–(B). Likewise, the judge expressly considered Powless-
Brown’s mitigating arguments, including that he acted in self-defense, his youth, and
his lack of a prior criminal history. And his 10-year sentence is within the 7-to-15-year
range the parties agreed was “appropriate” in the plea agreement. F ED. R. C RIM. P.
11(c)(1)(C).
Finally, counsel considers whether Powless-Brown could challenge the
conditions of supervised release, specifically the requirement to cooperate in DNA
collection. Although contained in the written judgment, this condition neither appears
in the presentence investigation report nor was mentioned by the judge at sentencing.
Normally, a discrepancy between supervised release conditions in oral and written
sentences requires vacatur of those not orally imposed at sentencing. United States v.
Anstice, 930 F.3d 907, 909 (7th Cir. 2019). But the DNA collection condition is required
by statute, 18 U.S.C. § 3583(d), and thus valid both because the judge had no discretion
whether to impose it and because we presume the statute gave Powless-Brown notice of
the condition. Anstice, 930 F.3d at 909. Any challenge on this basis would therefore be
frivolous.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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