United States of America v. Tyesha L. Clark

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 15, 2024
Decided October 17, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 23-3149
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
TYESHA L. CLARK,
Defendant-Appellant.
Appeal from the United States
District Court for the Southern
District of Indiana, Indianapolis
Division.
No. 1:22CR00104-001
Jane Magnus-Stinson,
Judge.
O R D E R
Tyesha Clark pleaded guilty to two charges stemming from her purchase of a
firearm for her minor son. The district court sentenced her to 21 months’ imprisonment.
She appeals, but her appointed counsel asserts that the appeal is frivolous and moves to
withdraw. Anders v. California, 386 U.S. 738 (1967). In her brief, counsel explains the
nature of the case and addresses issues that an appeal of this kind would typically
involve. Because counsel’s analysis appears thorough, and Clark did not respond to the
motion, C IR . R. 51(b), we limit our review to the subjects that counsel discusses, United
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1

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No. 23-3149 Page 2
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the
appeal.
In March 2021, Clark bought a tan Glock 19X pistol for her sixteen-year-old son,
Tremayne Hobson. In completing the paperwork for her purchase, she affirmed falsely
that she was the “actual transferee/buyer” of the gun. About two weeks later, Hobson
and two others met with a man to trade a tan Glock 19X; in the process, the man was
shot and killed in front of his family. The murder investigation uncovered photographs
of Hobson with the gun (which was never recovered), as well as many text messages
between Clark and Hobson about the model and cost of the firearm he wanted and
whether he wanted ammunition. In the messages, Clark mentioned Hobson’s history of
violence (“you rob people and shoot at people”) and his trading of “street guns.” After
her arrest, Clark admitted to buying the gun for Hobson. She also acknowledged that he
was in a gang and had been involved in shootings.
Based on these events, Clark pleaded guilty, without a plea agreement, to
making a false statement to a licensed firearms dealer, 18 U.S.C. § 922(a)(6), and
transferring a firearm to a juvenile having reasonable cause to believe he would use the
firearm in the commission of a crime of violence, id. § 922(x)(1). At the combined
change-of-plea and sentencing hearing, the district court conducted a colloquy with
Clark before finding that she was competent to enter an informed plea, that she
understood the nature of the charges and the consequences of the plea, that her plea
was knowing and voluntary, and that an independent factual basis supported the plea.
The court accepted Clark’s plea, adjudged her guilty, and proceeded to sentencing.
Before the hearing, the U.S. Probation Office had prepared a presentence
investigation report (PSR) that assigned a base offense level of 12 for the grouped
offenses under § 2K2.1(a)(7) of the Sentencing Guidelines. It added six levels because
Clark knew or had reason to believe that the firearm transferred to her son would be
used or possessed in connection with another felony offense. Id. § 2K2.1(b)(6)(B). And
the PSR subtracted three levels because Clark timely accepted responsibility. Id.
§ 3E1.1(a)–(b). Thus, her total offense level was 15, which produced a sentencing range
of 18 to 24 months when combined with her criminal history category of I.
Clark had previously objected to the PSR’s recommendation of the six-level
increase under § 2K2.1(b)(6)(B), but at the hearing, she withdrew the objection, and the
district court adopted the PSR in full. The court next heard from one of Hobson’s
victims and from Clark. The parties then offered their views on a suitable sentence:

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No. 23-3149 Page 3
Clark requested probation based on her lack of criminal history, while the government
requested 24 months’ incarceration because Clark had specific knowledge of her son’s
criminal activities and because she had disposed of the gun after the shooting.
The district court then discussed the sentencing factors under 18 U.S.C. § 3553(a).
It observed that Clark had put a firearm in the hands of a juvenile who she knew
committed violent felonies, and as a result a man was murdered in front of his family,
including a small child. On the other hand, the court considered Clark’s difficult
upbringing and her dedication to her children despite the irresponsible decision to buy
Hobson a gun. When the court observed that a mid-range sentence seemed appropriate,
Clark objected that this would not reflect “the ample mitigation.” The court noted the
objection but imposed for each conviction a within-guidelines sentence of 21 months’
imprisonment and 2 years’ supervised release, to be served concurrently.
In her Anders brief, counsel tells us that she advised Clark about the risks and
benefits of challenging her guilty plea, and Clark confirmed that she wishes to do so
because, among other reasons, she believes her text messages with her son were
obtained unconstitutionally. Counsel therefore properly discusses potential challenges
to the validity of the plea. United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
We agree with counsel that any challenge to the plea would be frivolous. Because
Clark did not move in the district court to withdraw her guilty plea, our review would
be for plain error. United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The court
ascertained that Clark was competent to enter a plea; she was entering it voluntarily;
she understood the nature of the charges, the possible penalties, the rights she would
waive by pleading guilty, and the role of the Sentencing Guidelines; and the plea was
supported by an adequate factual basis (facts that Clark admitted). F ED. R. C RIM . P.
11(b); United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Thus, the district court
substantially complied with Rule 11(b) of the Federal Rules of Criminal Procedure, and
Clark could not demonstrate plain error. Davenport, 719 F.3d at 618. And with the plea
intact, she cannot raise a nonfrivolous argument that evidence against her was illegally
obtained. United States v. Turner, 55 F.4th 1135, 1139 (7th Cir. 2022) (citations omitted)
(“[a] guilty plea ‘waives all nonjurisdictional defects’”).
Counsel next considers whether Clark could raise a nonfrivolous challenge to her
sentence. First, she concludes that there are no procedural errors to argue. The sentence
does not exceed the statutory maximum of 10 years applicable to each count. 18 U.S.C.
§ 924(a)(2), (a)(6)(B)(ii). And Clark withdrew (and therefore waived, United States v.

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Boyle, 28 F.4th 798, 802 (7th Cir. 2022)) the only objection she had to the guidelines
calculations. (Regardless, the record supports the application of the offense-level
increase under § 2K2.1(b)(6)(B): Messages show that Clark knew about her son’s
ongoing violent criminal conduct.) Our review of any other argument would be for
plain error, United States v. Castaneda, 77 F.4th 611, 614 (7th Cir. 2023), but counsel
rightly concludes that the court complied with the procedural requirements of
sentencing, Gall v. United States, 552 U.S. 38, 53 (2007).
Likewise, it would be futile to argue the district court abused its discretion by
imposing a substantively unreasonable sentence. Clark received a within-guidelines
sentence, so on appeal, we presume that it is not unreasonably high. United States v.
Major, 33 F.4th 370, 384 (7th Cir. 2022). Nothing in the record could rebut the
presumption here. The court explained its rationale for the sentence with reference to
multiple § 3553(a) factors, and it considered but was not persuaded by Clark’s
arguments for a probationary sentence. Id. at 384–85.
Finally, counsel correctly concludes that any challenge based on ineffective
assistance of counsel would be frivolous to raise on direct appeal, before an evidentiary
foundation could be developed on collateral review. Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Stokes, 726 F.3d 880, 897–98 (7th Cir. 2013).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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