United States v. James Cooper

Cooper was charged with conspiracy to distribute five kilograms or more of cocaine and 280 grams or more of crack cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; using a communication facility to facilitate a felony, id. § 843(b); aiding and abetting the distribution of crack cocaine, id. § 841(a)(1), (b)(1)(C); distribution of cocaine, id.; maintaining a premises for the purpose of manufacturing and distributing cocaine and crack cocaine, id. § 856(a)(1); possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c); possessing a firearm as a felon, id. § 922(g)(1); and possessing with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C). Cooper pleaded guilty to all counts, without a plea agreement. The district court conducted a plea colloquy conforming to Rule 11 of the Federal Rules of Criminal Procedure. It then accepted the plea and ordered the probation officer to prepare a presentence report. The probation officer calculated a guidelines range of 322 to 387 months in prison (based on a total offense level of 34 and a criminal history category of VI as a career offender, plus a mandatory consecutive 60 months in prison under § 924(c)). Cooper did not object to the probation officer's calculations. At sentencing, the government moved to amend Count 11 of the indictment. As originally drafted, the indictment cited "Title 18, United States Code, Sections 924(c)(1)(A)(i); (c)(1)(B)(i), and (c)(1)(A)(i)" as the basis for the charge. The government explained that the citation was a scrivener's error. Cooper was charged for possessing a handgun in violation of § 924(c)(1)(A)(i), while § 924(c)(1)(B)(i) concerns specific weapons irrelevant to Cooper's crime. The government thus requested that the citation to § 924(c)(1)(B)(i) be struck. Cooper's lawyer stated that there was no objection, and the court thus amended the indictment.

Cooper asked for a below-guidelines sentence of 180 months, the combined mandatory minimum under § 841 and § 924(c). He argued that the Guidelines for a career offender did not comport with the goals of sentencing and that his criminal history category was overstated. The government asked for 360 months. After considering the mitigating and aggravating factors of Cooper's offense, the court sentenced him to a 180-month prison term and 5 years of supervised release. Counsel first considers whether Cooper could challenge the validity of his guilty plea. After consulting with Cooper, counsel confirms that he wishes to challenge only the validity of his guilty plea to the § 922(g) charge. Counsel properly concludes that such a challenge would be frivolous. Cooper did not move in the district court to withdraw his plea, so review would be for plain error. See United States v. Schaul,

962 F.3d 917, 921 (7th Cir. 2020). A review of the plea colloquy does not suggest any

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plain error under Rule 11 of the Federal Rules of Criminal Procedure. The court determined that Cooper was competent to enter a plea, and it ensured that he knew the nature of each of the charges against him, the possible penalties, and the rights he would waive by pleading guilty. See F ED. R. CRIM. P. 11(b). Cooper replies that he was not fully informed of his option to plead guilty to certain counts and plead not guilty to others, and therefore he did not knowingly and voluntarily plead guilty. But Rule 11 requires only that the district court explain a defendant's right to persist in a plea of not guilty generally; it does not require the court to parse a guilty or not-guilty plea for each count. See F ED. R. CRIM. P. 11(b)(1)(B). The district court complied with this rule, explaining that Cooper had the right to plead not guilty. Regardless, the district court explained the elements of each charge, confirmed that Cooper understood these elements, and determined that he had discussed the nature and elements of the charges with counsel. See F ED. R. CRIM. P. 11(b)(1)(G). Thus, Cooper could not plausibly argue that the court plainly erred in accepting the plea. Counsel next considers whether Cooper could argue that he received ineffective assistance of counsel. But this issue is better reserved for collateral review, because

"[u]nless the issue was raised and a full record developed in the trial court, an appellate court cannot determine on direct appeal whether counsel's assistance was ineffective."

United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020).

Counsel then addresses and properly rejects potential sentencing arguments, beginning with possible procedural errors. Cooper's base offense level was correctly calculated to be 34 based on his unquestioned status as a career offender, see U.S.S.G. § 4B1.1(b)(1); 21 U.S.C. § 841(b)(1)(A), and his acceptance of responsibility, U.S.S.G. § 3E1.1. His career-offender status also established a criminal history category of VI. See id. § 4B1.1(b). Cooper did not object to either of these calculations at sentencing, and no plausible argument could show plain error.

Counsel next determines, again correctly, that any challenge to the substantive reasonableness of Cooper's sentence would be frivolous: His sentence is the mandatory minimum. See 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 924(c). Finally, counsel correctly concludes that Cooper could not raise any reasonable challenges to the terms or the conditions of his supervised release. Imposing supervised release was mandatory, and he received the statutory minimum term of five years under 21 U.S.C. § 841(b)(1)(A). In addition, because the term is within the guidelines range, it would be presumed reasonable. See United States v. Lickers, 928 F.3d 609, 621

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(7th Cir. 2019). Further, as counsel explains, Cooper confirmed at the sentencing hearing that he had read the proposed conditions of supervised release, and he raised no objections. See United States v. Flores, 929 F.3d 443, 449-50 (7th Cir. 2019). In his response brief, Cooper proposes raising two further arguments. He first contends that the court improperly amended Count 11 of the indictment. But Cooper's lawyer said he had no objection to the amendment, so any challenge would be reviewed, at best, for plain error. See id. at 447-48 ("certain fundamental rights" may be waived only by defendant personally). A district court is permitted to amend an indictment to correct "obvious clerical or typographical errors," United States v. Field,

875 F.2d 130, 133 (7th Cir. 1989) (quotation omitted), such as the one identified by the government here. There is no plausible argument that the court plainly erred in doing so.

Finally, Cooper proposes arguing that 18 U.S.C. § 922(g)(1) violates his rights under the Second Amendment. Counsel moved to suspend these proceedings pending the resolution of United States v. Prince, in which this court was presented with the question whether that statute is facially unconstitutional. Our opinion in Prince, along with its companion case, United States v. Watson, 171 F.4th 1012 (7th Cir. 2026), have since issued, and counsel has filed a position statement. She correctly concludes that any facial or as-applied challenge to his conviction on this basis would be frivolous. We held in Prince that § 922(g)(1) is not unconstitutional on its face, 171 F.4th at 1011-12, so Cooper could not plausibly raise a challenge on that basis. And as for an as-applied challenge, we said in Watson that Congress could lawfully disarm felons based on prior convictions for drug dealing. 171 F.4th at 1024. Cooper's criminal history includes two prior felony convictions for drug delivery, foreclosing any as-applied challenge. Therefore, we GRANT counsel's motion to withdraw and DISMISS the appeal.

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