Submitted March 19, 2014
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 107-4 -- Charles R. Norgle, Judge.
For United States of America, Plaintiff - Appellee: Bolling W. Haxall, Office of The United States Attorney, Chicago, IL.
For James Bey, Defendant - Appellant: Daniel T. Hansmeier, Daniel J. Hillis, Office of The Federal Public Defender, Springfield, IL; Jonathan E. Hawley, Office of The Federal Public Defender, Peoria, IL.
James Bey, Defendant - Appellant, Pro se, Lisbon, OH.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge
James Bey and three others conspired to rob the Waukegan, Illinois, branch of Associated Bank. They chose that location because one of the four, Latoya Thompson, worked there and as an insider could make a unique contribution to the crime. Bey gave David Schoenhaar, Jr. (another coconspirator) a pellet gun for use in the robbery and waited in a nearby getaway car with the final coconspirator, Trevor Gregory, while Schoenhaar entered the bank, displayed the gun, and demanded money from the vault. Thompson and a (coerced) coworker retrieved some $221,000 from the vault and gave the money to Schoenhaar, who led the two to a bathroom while pointing the gun at them and saying he'd kill them if they left the bathroom. He then left the bank--only to discover that Bey and Gregory had gotten cold feet and fled. All four conspirators were apprehended, and charged with bank robbery and with conspiracy to commit that offense. 18 U.S.C. § § 371, 2113(a).
In the district court Bey, the only defendant before us in this appeal, entered an " Alford plea" on each charge. That's a plea of guilty by a defendant who maintains his innocence, but, perhaps thinking that if he goes to trial he'll be found guilty (and not be able to get the judgment overturned on appeal), because there's a mountain of evidence against him, pleads guilty in hopes of obtaining a lighter sentence. As explained in North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), " while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt."
The district judge gave the defendant concurrent sentences of 92 months for the robbery and 60 months for the conspiracy--so effectively a 92-month sentence. Because the defendant doesn't want to withdraw his guilty plea, the appeal challenges only the sentence. His lawyer advises us that he can find no nonfrivolous ground for appealing from the judgment, and so asks us to let him withdraw from representing the defendant, in accordance with the procedure authorized by Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The defendant disagrees that he has no nonfrivolous ground for appealing.
We note parenthetically that the terms " frivolous" and " nonfrivolous" are misleading in this context. Most claims or arguments held to be " frivolous" are not silly or laughable, as the word implies, but simply so clearly blocked by statute, regulation, binding or unquestioned precedent, or some other authoritative source of law that they can be rejected summarily.
And since we're discussing word usage, we take the opportunity to question another bit of legal jargon. In innumerable cases in which a criminal defendant's lawyer files an Anders brief our court states, usually as a prelude to granting the lawyer's motion to withdraw and dismissing the appeal, that as long as the lawyer's brief is " facially adequate" we'll confine analysis to the issues discussed in the brief and in the defendant's response (if any) to it.
See, e.g., United States v. Vallar, 635 F.3d 271, 289 (7th Cir. 2011); United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (per curiam). By " facially adequate" we mean that the brief appears to be a competent effort to determine whether the defendant has any grounds for appealing. That appearance reassures us that the issues discussed in the brief are the only serious candidates for appellate review and so the only ones we need consider. We should say this rather than recite a formula--" facially adequate" --unlikely to be intelligible to the prisoner to whom the Anders order is addressed; with his lawyer having been allowed to withdraw, the prisoner may have difficulty understanding the what and why of the order. We should say for example: " Counsel has submitted a brief that explains the nature of the case and addresses the issues that a case of this kind might be ...