United States v. Evans
Opinion of the Court
ORDER
Clemet Evans
Counsel first considers whether Evans could assert, under Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that he should not have received the ten-year statutory minimum term because a jury did not find the facts that resulted in that term. The Supreme Court held in Alleyne that any facts that determine a statutory minimum sentence must be submitted to a jury, if not admitted by the defendant. See id. at 2155; United States v. Johnson, No.13-3172, 743 F.3d 1110, 2014 WL 721513 at *1 (7th Cir. Feb.26, 2014). Counsel properly concludes, however, that Evans waived his right to a determination by a trier of fact by admitting in his plea agreement and at his plea colloquy that the conspiracy involved at least the one kilogram of heroin necessary to trigger the ten-year statutory minimum. See 21 U.S.C. § 841(b)(1)(A)(i); United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002); United States v. Collins, 272 F.3d 984, 987-88 (7th Cir. 2001).
Counsel next considers arguing that Evans deserved a sentence below the statutory minimum because of his assistance to the government. Upon the government’s motion, 18 U.S.C. § 3553(e) authorizes the district court to impose a sentence below the statutory minimum to reward a defendant’s substantial assistance. But the government need not file the motion, and in this case the plea agreement provided that the government “in its discretion” may recommend a reduction in sentence if Evans substantially assisted the government in investigating or prosecuting others. At sentencing the government acknowledged Evans’s “very significant information” regarding another heroin dealer, but the
Counsel also considers arguing that the district court erred by refusing to order that Evans’s sentence run concurrently with a prior state sentence for maintaining a drug house. See U.S.S.G. § 5G1.3. The district court concluded that § 5G1.3 did not apply, adding, “[Tjhere is a mandatory minimum term that must be imposed in this case. And the government has not sought and the Court cannot find any basis for deviating from the mandatory minimum.” Counsel considers challenging the court’s apparent belief that the statutory minimum requirement barred it from imposing a concurrent sentence. See United States v. Hernandez, 620 F.3d 822, 823 (7th Cir. 2010). As counsel properly explains, however, any such error is immaterial. Evans finished serving his state sentence before receiving his federal sentence, so there was no state sentence with which to make his federal sentence concurrent. See U.S.S.G. § 5G1.3; United States v. Cruz, 595 F.3d 744, 745 (7th Cir. 2010).
Finally counsel considers whether Evans could argue that the district court erred by denying him credit for time served for his state offense of maintaining a drug house, see U.S.S.G. § 5K2.23, or otherwise challenge the reasonableness of his sentence. But counsel properly concludes that such a challenge would be frivolous. Because Evans did not receive a reduction for “substantial assistance” and was ineligible for the “safety valve” given his extensive criminal history, see 18 U.S.C. § 3553(e), (f), the statutory minimum was the lowest sentence he could receive. See Cruz, 595 F.3d at 746-47 (applying U.S.S.G. § 5K2.23); see also United States v. Spann, 682 F.3d 565, 566-67 (7th Cir. 2012); United States v. Johnson, 580 F.3d 666, 672-74 (7th Cir. 2009); United States v. Crickon, 240 F.3d 652, 655 (7th Cir. 2001).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
Although Evans’s first name is identified in the indictment and judgment as "Clement,” he signs his name "Clemet.” We will use the defendant’s own spelling and correct the case caption accordingly.
Reference
- Full Case Name
- United States v. Clemet Lee EVANS
- Cited By
- 1 case
- Status
- Published