In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2887

United States of America,

Plaintiff-Appellee,

v.

Darin D. Gilliam,

Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 99-153-CR-01-B/F--Sarah Evans Barker, Judge.

Argued April 19, 2001--Decided June 28, 2001



  Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Rovner, Circuit Judges.

  Flaum, Chief Judge. After being
indicted on drug conspiracy and
possession charges, Darin Gilliam decided
to enter into a plea agreement with the
government. Gilliam’s attorney informed
his client that, pursuant to the
agreement, Gilliam’s sentence likely
would be in the range of eight years.
However, Gilliam was advised that his
prior criminal record could cause his
sentence to be lengthened. Unbeknownst to
the government and defense counsel at the
time the agreement was drafted, Gilliam
did have an extensive criminal record--
one, in fact, that qualified him for
career offender status. When that
information was revealed, Gilliam was
informed that, as a career offender, his
sentence would be in the range of twenty
two years. Nevertheless, Gilliam stated
his desire to be held to the terms of the
agreement, and entered his plea of
guilty. Gilliam was sentenced to 262
months incarceration and now appeals,
arguing that his plea was involuntary and
that the indictment upon which he was
charged was deficient. For the reasons
stated herein, we affirm the conviction
and sentence imposed by district court.

I.   BACKGROUND
  Darin Gilliam first came to the
attention of Indianapolis, Indiana, drug
enforcement agents when a client of his,
Maceo Wells, was arrested on drug
conspiracy charges. Wells, who decided to
cooperate with the authorities in hopes
of reducing his sentence, named Gilliam
as his cocaine supplier, and agreed to
set up a controlled purchase from
Gilliam. Arrangements were made for
Gilliam, along with his accomplice,
Arthur Brown, to transport one and one-
half kilograms of cocaine from Los
Angeles, California, to Indianapolis for
sale to Wells and another individual.
Shortly after Gilliam and Brown’s arrival
in Indianapolis, a search warrant was
executed for Gilliam’s hotel room. Agents
conducting the search recovered the one
and one-half kilograms of cocaine, as
well as various incriminating documents.
Gilliam and Brown were subsequently
arrested.

  On December 7, 1999, a grand jury in the
Southern District of Indiana charged
Gilliam with a two-count indictment.
Count One stated that from October 25,
1999 through November 9, 1999, Gilliam
conspired to possess with intent to
distribute, and to distribute, cocaine,
in violation of 21 U.S.C. sec.sec.
841(a)(1) and 846. Count Two alleged that
on November 9, 1999, Gilliam knowingly
possessed with the intent to distribute
approximately one and one-half kilograms
of cocaine, in violation of 21 U.S.C.
sec. 841(a)(1) and 18 U.S.C. sec. 2.

  Rather than face trial, Gilliam decided
to cooperate with the government. On
February 23, 2000, a petition to enter a
plea of guilty was filed. According to
the attached plea agreement, the
defendant would plead guilty to Count One
of the indictment. Gilliam acknowledged
in the agreement that the applicable
statutory penalty was a minimum sentence
of ten years, and a maximum of life
imprisonment. Gilliam further noted that
"the final determination concerning the
applicable guideline calculation,
criminal history category, and sentencing
guideline range [would] be made by the
Court." Gilliam also understood that if
the court decided to impose a sentence
higher or lower than any recommendation
of either party, or determined that a
different sentencing guideline range
applied in this case, or decided to
depart from the otherwise applicable
sentencing guideline range pursuant to 18
U.S.C. sec. 3553(b), then Gilliam would
not be permitted to withdraw his plea of
guilty. In exchange for Gilliam’s plea
and agreement to cooperate with the
government concerning Wells’ case, the
government agreed to move to dismiss
Count Two of the indictment, and to
request a reduction of up to three levels
for sentencing purposes for Gilliam’s
future cooperation./1

  According to the agreement, the base
offense level for Gilliam’s drug
conspiracy was set at 32. Two points were
to be added because Gilliam supervised
Brown, and three points deducted for
Gilliam’s acceptance of responsibility.
Additionally, assuming Gilliam continued
to provide the government with
substantial assistance, the government
would request the aforementioned three
level reduction. Thus, assuming, as
Gilliam’s attorney had done at the time
of the negotiations, that Gilliam’s
criminal history category was IV, Gilliam
could have qualified for a sentencing
range of 110 to 137 months. Gilliam’s
attorney had explained to his client
that, in his best judgment, Gilliam would
receive a sentence of approximately eight
years. However, counsel cautioned his
client that Gilliam’s past criminal
history could enhance that sentence. At
the time that Gilliam filed his
agreement, neither the government nor his
attorney was aware of the extent of
Gilliam’s criminal history.

  On April 20, 2000, Gilliam’s criminal
history, along with the ramifications of
that history for sentencing purposes,
were disclosed to him in his Presentence
Investigation Report ("PSR"). The report
noted that among the myriad of prior run-
ins Gilliam had with the law were a 1988
conviction for assault with a deadly
weapon with great bodily injury and a
1990 conviction for assault with a deadly
weapon. Because Gilliam had been
convicted of two prior felonies that were
crimes of violence and because his
present conviction was a controlled
substance offense, the Sentencing
Guidelines classified Gilliam as a career
offender. See U.S.S.G. sec. 4B1.1. The
PSR noted that, as a career offender,
Gilliam’s criminal history category
should be set at VI. Furthermore, because
Gilliam’s present offense carried
astatutory maximum penalty of life
imprisonment, his offense level was to be
set at 37. See id. Thus, deducting three
points for Gilliam’s acceptance of
responsibility, his Guidelines range was
262 to 327 months of imprisonment.

  Almost two months later, on July 13,
2000, Gilliam appeared before the
district court for his change of plea and
sentencing hearing. At that hearing,
Gilliam informed the court that while he
could not read or write very well, his
counsel had read to him all the relevant
documents in his matter, including the
indictment, the plea agreement and the
PSR. When the district court questioned
Gilliam, he showed unease regarding the
possible length of his sentence. He
informed the court that at the time he
entered into the written agreement, he
was under the impression from his
attorney that his sentence would be in
the range of eight years. The court,
after questioning Gilliam’s attorney,
explained to the defendant that his
counsel’s estimate of an eight year
sentence was "a good judgment" in light
of the facts known to him at that time
the agreement was entered into. However,
the court stated that with the additional
information of Gilliam’s past criminal
record, his sentencing range was closer
to 21 years. Additionally, the court
explained to Gilliam that if he wished
not to enter his guilty plea, he could
proceed to trial and force the government
to prove his guilt beyond a reasonable
doubt. Gilliam acknowledged that his
attorney had provided him with similar
information, and stated that he did not
wish for the court to read the PSR aloud
to him. Thereafter, Gilliam informed the
court that he still wished to enter his
plea of guilty. After hearing testimony
regarding the facts surrounding Gilliam’s
arrest from drug enforcement agent Baker,
the court asked Gilliam for his plea. The
defendant plead guilty and was sentenced
to 262 months imprisonment, followed by
five years of supervised release.

  Gilliam now appeals his sentence,
arguing primarily that his plea was not
knowingly and voluntarily entered into.
Additionally, Gilliam asserts that his
plea of guilty was entered under a
defective indictment and that the
Sentencing Guidelines mandate that he
receive a lesser sentence.

II.   DISCUSSION

A. Knowing and Voluntary Nature of Gilliam’s
Plea

  Gilliam’s initial assertion on appeal is
that, as a result of the government and
defense counsel’s failure to evaluate his
criminal record prior to entering into a
plea agreement, Gilliam’s plea was not
knowingly and intelligently made.
According to the defendant, "the
[g]overnment’s negligence, and that of
defense counsel in not pursuing this
information, put the [d]efendant into a
position of accepting a plea on one set
of guidelines and being sentenced on
something greater." Gilliam further
contends that the district court’s
decision to have the plea hearing and the
sentencing on the same day subjected him
to a conflict that he could not overcome
in the time frame given.

  As the Supreme Court long ago noted "[a]
defendant who enters [a guilty] plea
simultaneously waives several
constitutional rights, including his
privilege against compulsory
self-incrimination, his right to trial by
jury, and his right to confront his
accusers. For this waiver to be valid
under the Due Process Clause, it must be
an intentional relinquishment or
abandonment of a known right or
privilege." McCarthy v. United States,
394 U.S. 459, 466 (1969) (internal
citation omitted). If the plea is not
voluntary and knowing, then it violates
due process, and is thus void. "Moreover,
because a guilty plea is an admission of
all the elements of a formal criminal
charge, it cannot be truly voluntary
unless the defendant possesses an
understanding of the law in relation to
the facts." Id.

  We have stated that when a defendant
does not move, while still before the
district court, to withdraw that plea of
guilt, the demanding standard of plain
error must guide our review. See United
States v. Driver, 242 F.3d 767, 769 (7th
Cir. 2001); United States v. Hicks, 129
F.3d 376, 378 (7th Cir. 1997); see also
United States v. Olano, 507 U.S. 725, 736
(1993). Thus, because Gilliam did not
previously challenge the knowing and
voluntary nature of his plea, in order to
vacate that plea, we must find that (1)
an error has occurred, (2) it was
"plain," (3) it affected a substantial
right of the defendant, and (4) it
seriously affected the fairness,
integrity, or public reputation of the
judicial proceedings. See Johnson v.
United States, 520 U.S. 461, 466-67
(1997).

  We conclude that Gilliam cannot
establish the first requirement necessary
for finding of plain error; namely, that
the district court committed any error.
It is not in dispute that, at the time he
entered into a plea agreement with the
government, Gilliam believed he would
receive a sentence of approximately eight
years. Furthermore, it is obvious that
the sentence imposed by the district
court was grossly larger than Gilliam had
understood it would be at the time he
agreed to plea guilty. However, an
attorney’s prediction or representation
regarding the length of a client’s
sentence, if later proven to be
inaccurate, will not necessarily render
the client’s plea unwitting or
involuntary. See Bridgeman v. United
States, 229 F.3d 589, 592 (7th Cir.
2000).

  Gilliam glosses over the fact that he
did not learn the impact the Guidelines
would have on his sentence on the date of
his sentencing. Gilliam received the PSR
on April 20. That document made patent
that, despite any assertion by his
attorney, Gilliam’s conviction would
require that he be treated as a career
offender. The PSR noted that, according
to the provisions of the Sentencing
Guidelines, Gilliam should receive a
sentence of 262 to 327 months. By
Gilliam’s own admission, between April 20
and July 13, the date sentencing was
imposed, Gilliam had the PSR read and
explained to him numerous times.
Furthermore, at the time Gilliam did
enter his plea of guilt, the district
court clearly explained the consequences
of the career offender status and the
impact it would have if he agreed to
plea. Gilliam acknowledged that he was
aware of those ramifications, and that he
was voluntarily choosing to plead guilty.
A defendant’s assertions as to the
voluntary nature of his plea during a
change of plea hearing are presumed to be
truthful. See Bridgeman, 229 F.3d at 592.

  In examining whether a plea was
knowingly and voluntarily entered, we
inspect the circumstances surrounding the
plea, in order to determine whether the
defendant was informed of his rights and
understood the consequences of his plea.
See United States v. Godwin, 202 F.3d
969, 971 (7th Cir. 2000). Gilliam was
free, from the moment he signed the plea
agreement, to the day of the change of
plea hearing, to revoke his plea
agreement. The agreement did not become
binding on him until the moment he
informed the court that he wished to hold
by the agreement. The court, recognizing
Gilliam’s prior misunderstanding, gave
the defendant multiple opportunities to
withdraw his plea. Gilliam chose not to.

  Had Gilliam, at the moment he entered
his plea, been unaware of the impact the
Guidelines would have on his sentence,
that lack of knowledge would not require
the vacating of his plea. "Generally, the
fact that a defendant underestimated his
sentence when entering his plea is not a
fair and just reason to permit him to
withdraw that guilty plea." United States
v. Knorr, 942 F.2d 1217, 1220 (7th Cir.
1991). Certainly, under these
circumstances, where any underestimation
was corrected prior to sentencing, there
is no reason to vacate the guilty plea.
Thus, we find that Gilliam’s sentence was
knowingly and voluntarily entered into.

B.   Deficiencies of the Indictment

  Gilliam’s second contention on appeal is
that the indictment upon which he pled
guilty was defective. Count I of the
indictment charged Gilliam with violating
21 U.S.C. sec.sec. 841(a)(1) and 846.
That indictment did not identify the
exact quantity of drugs to be used
against Gilliam for purposes of charging
factors. According to Gilliam, the
district court’s decision to sentence him
to a term greater than the statutory
maximum set forth in sec. 841(b)(1)(C)
thus resulted in a violation of the
Supreme Court’s decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000)./2

  Because Gilliam did   not raise this
Apprendi claim at the   time he was
sentenced, our review   is only for plain
error. See Nance, 236   F.3d at 824. As we
noted above, this means we must determine
(1) whether there was error at all, (2)
if so, whether it was plain, (3) whether
the error affected Gilliam’s substantial
rights, and (4) whether it seriously
affected the fairness, integrity, or
public reputation of the proceedings.
Johnson, 520 U.S. at 466-67. As with most
unpreserved Apprendi claims presented to
this court, Gilliam fails to establish
the fourth prong of the plain-error test.
See United States v. Robinson, 250 F.3d
527, 529 (7th Cir. 2001). Thus, we
proceed to examine whether the
indictment’s failure to state the
relevant drug quantity affects the
fairness, integrity, or public reputation
of the judicial proceedings.

  When applying the fourth prong of the
plain error test to Apprendi cases, we
ask whether "it is clear beyond a
reasonable doubt that a rational jury
would have found the defendant guilty
absent the error." Nance, 236 F.3d at 825
(internal citation omitted). In practical
terms, we analyze whether there was
overwhelming evidence that seven and a
half to nine kilograms of cocaine was
involved in Gilliam’s conspiracy. As in
Robinson and United States v. Patterson,
241 F.3d 912 (7th Cir. 2001), the
evidence surrounding Gilliam’s charge is
overwhelming. At no point during the
proceedings has Gilliam asserted that
less than seven and one half to nine
kilograms of cocaine were involved in his
conspiracy. Gilliam acknowledged as much
when he agreed to a base level of 32 in
his plea agreement. Additionally, Gilliam
did not challenge the amount of seven and
a half to nine, as specifically contained
in the PSR. At Gilliam’s change of plea
hearing, agent Baker testified that
Gilliam, by virtue of multiple trips from
Los Angeles to Indianapolis, had
transported seven and a half to nine
kilograms of cocaine. After Baker had
completed his testimony, Gilliam
confirmed the veracity of Baker’s
statements. Finally, we note that the
plea agreement, the PSR, and the district
court, specified that the statutory
sentence for a violation of Count I of
the indictment was a minimum of ten years
and a maximum of life imprisonment.
Gilliam’s sentence of 262 months was well
within that range. Under these
circumstances, we believe that the
indictments’s failure to state the
relevant drug quantity cannot be said to
have affected the fairness, integrity, or
public reputation of the judicial
proceedings.

  We note in passing that Gilliam likewise
maintains that Count II of the indictment
was deficient. Specifically, Gilliam
asserts that while he was charged in
Count II with violating 21 U.S.C. sec.
841(a)(1) and 18 U.S.C. sec. 2, the
indictment fails to incorporate any
language of willfulness or aiding and
abetting, as contained in 18 U.S.C. sec.
2. Perhaps we would look more favorably
upon Gilliam’s challenge were it not the
fact that Count II of the indictment was
dismissed pursuant to the agreement
between Gilliam and the government.
However, as the Count was dismissed,
Gilliam cannot challenge a deficiency
contained therein, or earnestly assert
that he was harmed in any way by the
failure of the indictment to contain the
language at issue.

C.   Application of the Sentencing Guidelines

  Besides raising an Apprendi challenge
based on the failure of the indictment to
allege the specific quantity of drugs at
issue in this case, Gilliam presents an
issue relating to the interplay between
Apprendi and the appropriate calculations
under the career offender guideline,
U.S.S.G. sec. 4B1.1. As the plea
agreement and the PSR put forth,
Gilliam’s original base level for
purposes of his conspiracy charge was set
at 32. However, according to sec. 4B1.1,
if a defendant has two prior qualifying
convictions, and his present conviction
likewise meets the standards set forth in
the section, then the individual is
considered a career offender. For career
offenders, that section of the Guidelines
sets a new offense level based upon the
"offense statutory maximum," defined as
"the maximum term of imprisonment
authorized for the offense of
conviction." U.S.S.G. sec. 4B1.1 at
Application Note 2. Career offenders are
also automatically considered to have a
criminal history category of VI.
Throughout these proceedings, it was
assumed that the offense statutory
maximum for the offense charged in Count
I of Gilliam’s indictment was life
imprisonment. Such a penalty is
authorized for a conviction under 21
U.S.C. sec. 841(b)(1)(A)(ii)(II), the
penalty provision applicable to a
conviction under sec. 841 involving five
or more kilograms of cocaine. Because of
Gilliam’s prior convictions, he was
considered a career offender. Under the
table contained in U.S.S.G. sec. 4B1.1,
the offense level applicable to a
conviction for a crime with an offense
statutory maximum of life imprisonment is
37. Gilliam asserts that, because the
indictment failed to allege drug
quantity, the maximum sentence he was
entitled to receive was a term of twenty
years, in accordance with sec.
841(b)(1)(C). According to Guideline sec.
4B1.1, if the offense statutory maximum
for a conviction is 20 years the new base
level is set at 32. Thus, according to
Gilliam, had the court applied the career
offender guideline to an offense
statutory maximum of twenty years instead
of life, the offense level would have
been 32 instead of 37.

  Generally, Apprendi does not require
facts pertinent to application of the
Sentencing Guidelines to be determined
under an elevated burden of persuasion.
See Brannigan v. United States, 249 F.3d
584, 587 (7th Cir. 2001). Rather, "it
holds only that circumstances affecting
the statutory maximum punishment must be
established beyond a reasonable doubt to
the satisfaction of the trier of fact."
Id. However, this is one instance where
Apprendi is applicable to a determination
made in accordance with the Sentencing
Guidelines. This is because U.S.S.G sec.
4B1.1 makes the "offense statutory
maximum" the determinative factor in
calculating a sentence under the career
offender guideline. Therefore, the rule
set forth in Apprendi was implicated when
the court relied upon an indictment
listing no drug quantity, and only
referencing sec. 841(a)(1), in setting
the offense statutory maximum for career
offender purposes at life imprisonment.
Thus, while at first blush, Gilliam
appears to be presenting an intricate
sentencing argument, at its essence,
Gilliam is resubmitting his previous
Apprendi challenge under a different
name.

  Though this Apprendi contention is more
complex than Gilliam’s previous argument,
nonetheless, the same standard of review
is applied. Because Gilliam is raising
this Apprendi claim for the first time on
appeal, Gilliam must once again overcome
the hurdle that plain error review
creates for him./3 See Nance, 236 F.3d
at 824. While we recognize that Apprendi
is properly implicated by these facts, as
above, we do not believe that the
district court’s decision seriously
affected the fairness, integrity, or
public reputation of the judicial
proceedings. See United States v. Saya,
247 F.3d 929, 940-42 (9th Cir. 2001)
(finding that applying an incorrect
offense statutory maximum for career
offender purposes implicates Apprendi,
but that nonetheless, plain error review
still applies). As stated above, at no
point during the proceedings did Gilliam
ever believe the statutory maximum
penalty for Count I was anything other
than life imprisonment. Furthermore,
though we need not rehash the facts of
this case, we are confident that the
testimony of both agent Baker and Gilliam
overwhelmingly established that Gilliam
had dealt in a quantity of drugs
sufficient to set his statutory offense
maximum at life imprisonment. As such,
the application of that maximum for
career offender level purposes does not
require that we vacate Gilliam’s
sentence.

D.   Ineffective Assistance of Counsel

  Before concluding, there is one final
issue that we must touch upon. In his
written submissions to this Court, Gilli
am claimed that his trial counsel had
rendered ineffective assistance by (1)
failing to identify Gilliam’s prior
criminal history before negotiating the
plea agreement, and (2) advising his
client to accept the plea agreement on
erroneous information. Certainly, Gilliam
can raise an ineffective assistance of
counsel claim on direct appeal. However,
a decision to do so means that our
inquiry would be confined to the facts
that appear in the record as it now
stands. See Godwin, 202 F.3d at 973. As
we have noted, that is "a limitation that
almost invariably dooms these claims when
they are raised on direct appeal." Id.
When augmentation of the record is
required, 28 U.S.C. sec. 2255 is the
proper avenue for raising
ineffective-assistance contentions. See
Hugi v. United States, 164 F.3d 378, 381
(7th Cir. 1999). Recognizing that his
ineffective assistance claims would be
benefitted by evidence not presently
contained in the record, at oral
argument, Gilliam requested to withdraw
these claims, thereby preserving them for
a habeas proceeding. Thus, we will not
examine the merits of those claims. See
United States v. Alcantar, 83 F.3d 185,
191 (7th Cir. 1996).


III.   CONCLUSION

  For the foregoing reasons, we Affirm the
conviction and sentence imposed by the
district court.

FOOTNOTES

/1 Pursuant to the agreement, Gilliam remained free
to argue for further departures.

/2 In Apprendi, the Supreme Court held that "[o]ther
than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt."
530 U.S. at 490. The implication of Apprendi for
defendants charged with drug offenses under 21
U.S.C. sec. 841(a) is that they may not be
subjected to a statutorily enhanced sentence
based on drug type and quantity, as provided in
sec. 841(b), without those elements being charged
in the indictment and proven beyond a reasonable
doubt. See United States v. Nance, 236 F.3d 820,
825 (7th Cir. 2000).

/3 Perhaps in an effort to avoid the stumbling block
that plain error review poses to Apprendi claims,
Gilliam attempts to recharacterize his argument
as a pure sentencing issue. That restatement does
not benefit Gilliam for two reasons. First,
pursuant to Gilliam’s plea agreement, if we
consider this issue a straightforward sentencing
issue, then Gilliam has forfeited the right to
make such a challenge. Second, to the extent that
such a claim would not be deemed forfeited, we
would still review under plain error, as Gilliam
did not raise the issue below. See Fed. R. Crim.
P. 52(b).
