United States of America v. Calvin Nash

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2023
Decided July 25, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CALVIN NASH,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 19-CR-120-2-JPS
J. P. Stadtmueller,
Judge.
O R D E R
In 2019, Calvin Nash pleaded guilty to conspiring to distribute illegal drugs,
see 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 2, and was sentenced to 144 months’
imprisonment and five years’ supervised release. 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 Nash of the motion, see CIR . R. 51(b), and he did not
respond. Counsel’s brief explains the nature of the case and addresses potential issues
that an appeal of this kind would involve; because counsel’s analysis appears thorough,
we limit our review to the issues she discusses. 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NONPRECEDENTIAL DISPOSITION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. 22-2094 Page 2
In December 2019, Nash pleaded guilty to his role in a Milwaukee-area drug
conspiracy, for which he distributed heroin and cocaine, maintained stash houses, and
acted as an enforcer. As part of the plea agreement, Nash stipulated that he was
responsible for 1 to 3 kilograms of heroin and 5 to 15 kilograms of cocaine, and he
acknowledged that he might qualify as a career offender under the Sentencing
Guidelines. A magistrate judge conducted a plea colloquy under Rule 11 of the Federal
Rules of Criminal Procedure, and the district court accepted the plea.
Although he was represented by counsel, before sentencing Nash submitted two
relevant filings pro se. First, he argued to the court that he was not a career offender.
See U.S.S.G. § 4B1.1(a). He recognized that he had prior drug felony convictions under
Wisconsin law for cocaine delivery and a federal drug-trafficking conviction. But he
contended that he was not a career offender because, in his view, Wisconsin law
defined cocaine more broadly than federal law, and therefore, he concluded, his
Wisconsin conviction was not a predicate to the career-offender designation. Second, in
August 2020, Nash moved pro se to withdraw his guilty plea, saying that he had felt
“rushed” into the plea agreement and wanted a new lawyer to negotiate a better deal.
While the motion was pending, the government offered to recommend the mandatory
minimum sentence (120 months’ imprisonment) if Nash withdrew the motion. Nash
neither accepted that offer nor withdrew the motion. The district court later adopted the
magistrate judge’s recommendation to deny the motion because Nash was represented
by counsel, and thus the motion was not properly before the court.
In the presentence investigation report (PSR), a probation officer first determined
that Nash qualified as a career offender. U.S.S.G. § 4B1.1(a). Under the career-offender
guideline, Nash’s base offense level was 37 because he faced a maximum sentence of
life in prison for the current offense. Id. § 4B1.1(b)(1); 21 U.S.C. 841(b)(1)(A). But the PSR
recommended a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1,
for a final offense level of 34. As a career offender, Nash’s criminal history category was
VI regardless of his criminal-history points, id. § 4B1.1(b), and thus the applicable
guidelines range was 262 to 327 months’ imprisonment.
The district court adopted the PSR’s guidelines calculation and imposed
sentence. When the government argued for a 180-month sentence, defense counsel
objected, insisting that the government was obligated to recommend the 120-month
minimum sentence to which, in counsel’s view, it had previously agreed before the
court denied Nash’s motion to withdraw his plea. The government responded that
there was no agreement because Nash never accepted its offer and never withdrew his

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No. 22-2094 Page 3
motion. The court overruled the objection. Nash then personally objected to his career-
offender designation, maintaining his argument that his Wisconsin conviction is not a
predicate offense. The court overruled that objection, then imposed a below-guidelines
sentence of 144 months in prison and five years of supervised release. In explaining the
sentence, the court recognized that Nash had faced significant challenges but
emphasized the severity of Nash’s offense, his criminal history, and the need to protect
the public from his conduct.
After consulting with Nash and confirming that he wishes to challenge his guilty
plea, counsel appropriately evaluates the decision to deny Nash’s motion to withdraw
his plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). We agree with
counsel that Nash could not plausibly challenge that ruling. Putting aside the problem
that Nash, represented by counsel, did not receive approval to move pro se to withdraw
his plea, we would review the court’s denial of that motion for plain error because the
motion did not identify a defect in his Rule 11 colloquy. United States v. Dyer, 892 F.3d
910, 913–14 (7th Cir. 2018). No plain error occurred. First, the district court substantially
complied with Rule 11 of the Federal Rules of Criminal Procedure and ensured the plea
was knowing and voluntary. See F ED. R. C RIM . P. 11(b). Further, Nash stated under oath
at the plea hearing that he was voluntarily pleading guilty and no one had threatened,
forced, or pressured him to plead guilty. Those sworn statements are presumed true,
and Nash would need to provide a “compelling explanation” for contradicting them on
appeal, but none is evident here. See Thompson v. United States, 732 F.3d 826, 829–30
(7th Cir. 2013). Finally, although the court did not tell Nash of potential immigration,
forfeiture, or restitution consequences, these omissions are harmless. Nash is a citizen of
the United States, and the government did not seek forfeiture or restitution; thus, these
omissions did not affect Nash’s substantial rights and cannot undermine his plea.
United States v. Coleman, 806 F.3d 941, 944 (7th Cir. 2015).
Turning to sentencing, counsel rightly concludes that Nash cannot mount
nonfrivolous procedural challenges to his sentence. As counsel notes, the district court
correctly computed a guidelines range of 262 to 327 months’ imprisonment based on a
total offense level of 34 and a criminal history category of VI. Counsel next considers
challenging Nash’s career-offender designation based on his argument that Wisconsin
defines cocaine more broadly than federal law, so his cocaine-delivery conviction under
Wisconsin law is not a predicate offense. Counsel correctly rejects that argument: We
have interpreted “controlled substance offense” under the career-offender Guideline to
include state-law offenses, like Nash’s, that relate to illegal drugs and are punishable by
more than one year in prison. See United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020).

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No. 22-2094 Page 4
Counsel cannot identify any other potential procedural errors in the sentence,
and we see none. To begin, as counsel rightly observes, the district court adequately
addressed Nash’s arguments in mitigation, applied the sentencing factors under
18 U.S.C. § 3553(a), and explained the sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). In addition, counsel considers but correctly rejects challenging the court’s refusal
to require the government to recommend the mandatory minimum sentence. As
counsel notes, resentencing may be proper when the government breaches an
agreement to recommend a certain sentence. See United States v. Wyatt, 982 F.3d 1028,
1030 (7th Cir. 2020) (citing Santobello v. New York, 404 U.S. 257, 263 (1971)). But here the
government merely offered to recommend a 120-month sentence if Nash withdrew his
motion to withdraw his plea. Nash never did so, thus no agreement occurred.
Next, counsel correctly concludes that it would be pointless to challenge the
substantive reasonableness of the sentence. We would presume that Nash’s below-
guidelines sentence is reasonable. See United States v. Wehrle, 985 F.3d 549, 557 (7th Cir.
2021), and nothing in the record could rebut that presumption. In considering the
sentencing factors under 18 U.S.C. § 3553(a), the court reasonably balanced Nash’s
mitigating arguments against the seriousness of his sale of kilograms of heroin and
cocaine and the danger that such high-volume drug trafficking poses to the community.
Thus, we agree with counsel that it would be frivolous to argue that the sentence is
unreasonably high.
Finally, counsel considers raising the issue of ineffective assistance of counsel.
But, as counsel notes, Nash is better off advancing an ineffective-assistance claim on
collateral attack, 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 counsel’s motion to withdraw and DISMISS the appeal.

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