                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 04-1485
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

VIRGIL D. CARROLL,
                                        Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 03-CR-085-S-01—John C. Shabaz, Judge.
                       ____________
     ARGUED APRIL 20, 2005—DECIDED JUNE 21, 2005
                    ____________



 Before COFFEY, MANION, and WOOD, Circuit Judges.
  PER CURIAM. Virgil Carroll, a resident of Missouri, was
arrested on June 20, 2003, at Fort McCoy, Wisconsin, where
he was undergoing annual Army Reserves training. A
search of his quarters revealed 35 grams of methamphet-
amine, related paraphernalia, more than 100 pills con-
taining the methamphetamine precursor pseudoephedrine,
and a .22 caliber derringer. The government alleged that
Carroll had distributed methamphetamine on several oc-
casions to other parties, including two minors. Carroll was
charged in a superseding indictment with five counts of
possession with intent to distribute and distribution of
2                                               No. 04-1485

methamphetamine, and possession of a firearm in further-
ance of a drug trafficking crime.
  After rejecting the government’s first offer, Carroll even-
tually entered into a plea agreement. Although the agreement
originally provided that he would plead to Counts One and
Five of the superseding indictment, which charged him with
distributing methamphetamine in December 2002 and
possessing the derringer in connection with a drug offense,
the parties altered the agreement at the last minute.
Instead of pleading guilty to the December 2002 distribu-
tion charge, Carroll pleaded guilty to Count Four, which
charged that he possessed with intent to distribute the
methamphetamine found in his quarters in June 2003.
Carroll also pleaded guilty to Count Five, the gun charge,
as originally provided for in the plea agreement. During the
plea colloquy, Carroll confirmed under oath that he was
satisfied with the performance of his attorney, Brown, with
whom he had discussed the plea agreement. He further
acknowledged that he had signed the agreement and was
pleading voluntarily. Carroll admitted intentionally pos-
sessing for distribution the methamphetamine found in his
quarters on June 20, 2003, and possessing the .22 caliber
derringer on that same date in furtherance of that drug
trafficking crime. He acknowledged that the search of his
quarters uncovered a variety of items indicative of metham-
phetamine distribution, such as a scale and towels covered
with methamphetamine residue. He admitted that the
items were his and that he possessed them in furtherance
of his distribution activities. The court accepted Carroll’s
guilty pleas.
  On December 15, 2003, several weeks after Carroll pleaded
guilty, the probation officer released the presentence in-
vestigation report. The probation officer calculated a
guideline range of 46 to 57 months on Count Four, and five
years, or the statutory minimum, for Count Five, the two
sentences to be served consecutively. (The probation officer
No. 04-1485                                                 3

later offered an amended calculation of 33 to 41 months on
Count Four, to be used if the court declined to include drug
quantities from incidents not encompassed by Carroll’s guilty
pleas; the court adopted the lower calculation at sentenc-
ing.) The presentence report cited the fact that Carroll
distributed methamphetamine to minors as an aggravating
circumstance that could warrant an upward departure under
U.S.S.G. § 5K2.0. Brown filed, on Carroll’s behalf, objections
to the report on December 29, 2003, and a motion to
withdraw his guilty pleas on January 5, 2004.
  In an affidavit supporting the motion to withdraw,
attorney Brown related that Carroll now insisted that he
was innocent of the crimes to which he pleaded guilty, and
that he pleaded only because Brown pressed him to do so on
a short deadline. According to Carroll’s chronology, as
related by Brown, the lawyer received unspecified “informa-
tion and additional discovery” on November 4, 2003, two
days before a deadline set by the government for Carroll to
accept a proposed plea agreement. Carroll discussed this
new information with Brown over the telephone, since he
was at home in Missouri at the time and did not arrive in
Wisconsin until the day of the plea hearing. Brown sum-
marized Carroll’s asserted grounds for withdrawing his pleas
as (1) Carroll never had enough time to review the new
discovery before the government’s deadline; and (2) Brown
rendered ineffective assistance of counsel by overstating the
amount of time Carroll would face if he went to trial and by
“strong-arming” him to accept the agreement.
  On February 12, 2004, Carroll supplemented his motion
to withdraw through new counsel. Carroll reiterated his
claim of actual innocence, specifying that the basis of this
defense was that he had not been in Wisconsin at all during
December 2002, when the actions giving rise to Counts One
and Two of the superseding indictment allegedly occurred.
This, according to Carroll, not only made it impossible that
he was guilty on those counts, but also Counts Three, Four,
4                                                 No. 04-1485

and Five, although he admitted that he was in Wisconsin on
the dates when those offenses allegedly occurred. Carroll
also elaborated on his claim of ineffective assistance of
counsel, alleging that he was able to contact Brown only
indirectly, through his assistant, from the time of the
superseding indictment in mid-September 2003 until early
November, when Brown called him in Missouri to say that
he “had received new discovery which was ‘bad.’ ” Again,
Carroll did not elaborate on the nature of this discovery, or
its perceived impact. Brown, according to Carroll, advised
that he accept the plea agreement because a guilty verdict
at trial could result in a sentence as high as 85 years’
imprisonment. Carroll indicated that Brown held out the
plea agreement as an alternative that would result in “a
sentence of six years, of which he would actually serve as
little as four years.” Carroll then protested his innocence to
Brown, as he maintains that he had done all along, to which
Brown replied that he had not subpoenaed any witnesses or
prepared any defense, and that if Carroll went to trial, “he
would be surely convicted and face 85 years in prison.”
Carroll said that, having not seen the discovery, he then
agreed to plead guilty to Counts One and Five, so Brown
faxed him the plea agreement, which he signed.
  Carroll’s supplement also details his version of the events of
the plea colloquy. According to Carroll, just before the plea
hearing he met with Brown and an FBI agent who was
there to return personal property seized from his barracks
quarters during the June 2003 search. Carroll alleged that
while he was distracted by the return of his personal prop-
erty, attorney Brown had him sign a piece of paper without
reading it. The document changed Carroll’s plea agreement
to Counts Four and Five (the June 2003 methamphetamine
possession stemming from the search of his quarters and
the firearm charge) rather than Counts One and Five (the
distribution charge from December 2002 when, Carroll al-
leges, he was not in Wisconsin). When he heard the charges
No. 04-1485                                                   5

read in court he asked Brown about the change; Brown
“simply said not to worry and to just get through the plea
without doing anything to upset the judge.” Carroll ex-
plained that he repeatedly expressed to Brown “his unease
and distress at pleading guilty to something he did not do,”
but Brown replied that he should “simply do the plea, and
any problems could be resolved later on appeal in the court
of appeals.” Shortly thereafter, Carroll continued, he re-
ceived the presentence report, at which point he “realized
for the first time the actual sentence he was likely to receive,
and the nature and importance of the way sentencing
guidelines calculations worked in determining that sen-
tence.” Carroll then moved to withdraw his pleas.
  The district court conducted a hearing on the motion just
prior to sentencing, where Carroll testified that he had lied
at the plea colloquy. Carroll elaborated that he falsely
admitted guilt because attorney Brown had told him that “if
I didn’t do it they wouldn’t accept the plea and if they didn’t
accept the plea I would be found guilty and have to do
eighty-five years.” Brown also testified and denied the
allegation, especially the figure of 85 years. After Carroll,
Brown, members of Carroll’s family, and one of the minors
to whom Carroll allegedly distributed methamphetamines
testified and were cross-examined, the district court re-
jected the motion. The judge explained that Carroll, during
his plea hearing, had been “one of the more credible wit-
nesses” that he had seen, and that his demeanor was “direct,
nonequivocating, [and] not coached.” The court found that
Carroll’s explanation of the events culminating in his guilty
pleas was unsatisfactory and not credible, citing in parti-
cular the dispute over whether his attorney raised the specter
of an 85-year sentence, which the court found dubious.
Finding that the Brown’s performance was reasonable, the
court sentenced Carroll in accordance with his pleas on
Counts Four and Five of the superseding indictment, pos-
session with intent to distribute the methamphetamine
6                                                 No. 04-1485

found in the search of his quarters and possession of the
derringer in furtherance of that drug trafficking crime.
  The court calculated that, in connection with Count Four,
Carroll was in possession of the equivalent of 43.22 kilo-
grams of marijuana after converting the methamphetamine
discovered during the search. See U.S.S.G. § 2D1.1, com-
ment. (n.10). Accordingly, the court assigned Carroll a base
offense level of 20. Carroll, as his new attorney conceded,
had disqualified himself from an acceptance-of-responsibil-
ity credit by attempting to withdraw his guilty pleas and
standing on his innocence. Moreover, the court character-
ized Carroll’s testimony in support of his motion to with-
draw as perjurious, and found that his testimony together
with his attempt to withdraw the pleas constituted obstruc-
tion of justice. The court added 2 levels under U.S.S.G.
§ 3C1.1, resulting in a total offense level of 22. From the
resulting range of 41 to 51 months, the court sentenced
Carroll to 51 months on Count Four. The judge explained
that, while he might have departed upwards based on
Carroll’s conduct in distributing methamphetamine to
minors, he decided instead to sentence at the top of the
range. The court also sentenced Carroll to a consecutive
five-year term on Count Five.
  On appeal Carroll challenges the denial of his motion to
withdraw his guilty pleas. He also argues that the district
court committed clear error in applying the upward ad-
justment for obstruction, and plain error by applying the
sentencing guidelines as mandatory.
  A defendant does not have an absolute right to withdraw
a plea before sentencing, although the court may allow him
to do so if he has a “fair and just reason” for doing so; the
court’s “factual findings about the existence (or not) of a fair
and just reason to withdraw the plea stand unless they are
clearly erroneous.” United States v. Wallace, 276 F.3d 360,
366 (7th Cir. 2002). We review the district court’s ruling for
No. 04-1485                                                  7

abuse of discretion. Id. Carroll makes two arguments on his
guilty pleas—that he is actually innocent, and that ineffec-
tive assistance of counsel rendered the pleas involuntary. We
perceive no abuse of discretion in the district court’s refusal
to accept either contention as a basis to set aside Carroll’s
guilty pleas.
  As to the first, actual innocence is a valid ground for
withdrawing a guilty plea. United States v. Hodges, 259
F.3d 655, 661 (7th Cir. 2001). “But a defendant’s bare pro-
testations of innocence—especially after a knowing and
voluntary guilty plea in a thorough Rule 11 colloquy—will
not suffice. . . . The defendant must proffer some credible
evidence.” Id. Carroll provided no evidence other than his
own denials with respect to Counts Four and Five of the
superseding indictment, which not only contradicted his
earlier sworn testimony during the plea colloquy, but also
ignores that as to those two counts the government would
have offered at trial the methamphetamine, the gun, and
the associated items suggesting drug distribution that were
found in Carroll’s quarters. And of course the government
would have presented testimony from reservists who saw
Carroll with juveniles while he was at Fort McCoy, and
from the juveniles themselves. The district court was thus
understandably skeptical of the claim of innocence, espe-
cially since it came only after Carroll saw the presentencing
report. See United States v. Underwood, 174 F.3d 850, 854
(7th Cir. 1999). It is also not lost upon us that Carroll’s
rhetoric about actual innocence focuses solely on the dates
he allegedly committed counts that were dismissed as part
of his plea agreement.
  Ineffective assistance of counsel renders a guilty plea
involuntary, Hill v. Lockhart, 474 U.S. 52, 57 (1985), and
thus is also a valid basis for withdrawing a guilty plea.
United States v. Wallace, 276 F.3d at 360. But to have
shown ineffective assistance, Carroll was required to
demonstrate both that Brown’s performance was “objec-
8                                                No. 04-1485

tively unreasonable” and that, but for Brown’s errors,
Carroll would not have pleaded guilty. Hays v. United
States, 397 F.3d 564, 568 (7th Cir. 2005). “This test is
‘highly deferential’ to counsel and presumes reasonable
judgment and effective trial strategy.” Id. (citation omitted).
Any contention that Brown’s performance was objectively
unreasonable stands in sharp contrast to Carroll’s testi-
mony during his plea colloquy, at which time he affirmed
under oath that he was “satisfied with the counsel, repre-
sentation and advice given” by Brown.
  Brown described the trial strategy he would have pur-
sued, which focused on discrediting the government’s wit-
nesses, but added that:
    [W]hat I indicated was that there comes a point in my
    opinion where a jury, it isn’t going to matter if the
    government’s witness A isn’t credible, if the govern-
    ment’s witness B isn’t credible, at some point you’re
    going to have a cumulative effect and whether individu-
    ally they’re credible or not that in my opinion a jury
    was going to find their cumulative evidence to be
    credible and that I thought that it looked very bad for
    him to go to trial and I told him in all likelihood it was
    my opinion that he was likely to be convicted.
The district court found that, given the circumstances,
Brown’s advice to pursue a plea agreement was reasonable,
and that Carroll’s guilty pleas were not involuntary due to
bad advice or information from his counsel. These findings
are not clearly erroneous.
  Carroll further argues that the sentencing court failed to
make adequate findings to support the upward adjustment
under U.S.S.G. § 3C1.1. In order to find obstruction based
on perjury, the sentencing court must find that the defen-
dant willfully made misrepresentations under oath that
were relevant to the prosecution, and specifically intended
to obstruct justice. United States v. Dunnigan, 507 U.S. 87,
No. 04-1485                                                  9

94 (1993); United States v. Jackson, 300 F.3d 740, 749 (7th
Cir. 2002). We review the adequacy of the sentencing court’s
conclusions under Dunnigan de novo, and its factual findings
for clear error. United States v. McGiffen, 267 F.3d 581, 591
(7th Cir. 2001).
  The district court made several particular findings that
Carroll was lying. It found his testimony that Brown told
him he would be sentenced to 85 years’ imprisonment not
credible: “Particularly, [Brown] did not say 85 years. And
when you begin to go more than just the usual lack of
credibility and go so far beyond, it smacks of intentional
lying and deceit under oath. This is not the type of lawyer
that is going to tell him 85 years, nor has he agreed that he
did tell him that.” The court also found that Carroll falsely
testified that the various pseudoephedrine pills found in his
quarters were prescribed to him in order to treat a medical
condition; the prescription that Carroll proffered for the
pills dated from after his arrest. But overall the court based
its findings of perjury on Carroll’s previous admissions,
including his sworn statements during the plea colloquy and
an admission that he kept the weapon to protect himself
because he carried large amounts of cash. The court’s
determination that Carroll perjured himself in support of
the motion to withdraw is not a clear error, and the district
court did not misapply the guidelines in its application of
§ 3C1.1.
  Carroll finally argues that his Fifth and Sixth Amendment
rights were violated when the district court increased his
sentence based on judicial findings of fact. The district court
made two relevant findings without a jury, the weight of the
methamphetamine Carroll possessed and that he testified
falsely at the hearing on his motion to withdraw his pleas.
Accordingly, there was a constitutional error in this case.
But Carroll did not raise an objection below sufficient to
escape the plain error standard of review; his only challenge
to his sentencing adjustments was predicated on the claim
10                                              No. 04-1485

that the court misapplied § 3C1.1. As Carroll did not object
on constitutional grounds in the district court, the standard
of review is plain error. United States v. Paladino, 401 F.3d
471, 486-87 (7th Cir. 2005).
  Although the district court selected the high end of the
guideline range to account for Carroll’s distribution of
methamphetamine to minors, we have said that even a
term of imprisonment at the top of the range “does not rule
out the possibility that the judge might have imposed a
lesser sentence had he known that the Guidelines did not
bind him.” United States v. Della Rose, 403 F.3d 891, 907
(7th Cir. 2005); see also Paladino, 401 F.3d at 482. A
limited remand is in order to discover whether the sentenc-
ing court would have given Carroll a different sentence on
Count Four had it understood the guidelines to be merely
advisory. Paladino, 401 F.3d at 483. Accordingly, we affirm
Carroll’s convictions but order a limited remand under
Paladino in order to obtain a determination as to whether
the district court would have applied a different sentence
post-Booker.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-21-05
