United States v. Bryant Porter ( 2021 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted May 6, 2021
    Decided May 18, 2021
    Before
    DIANE S. SYKES, Chief Judge
    JOEL M. FLAUM, Circuit Judge
    AMY J. ST. EVE, Circuit Judge
    No. 20-2307
    UNITED STATES OF AMERICA,                        Appeal from the United States District
    Plaintiff-Appellee,                         Court for the Northern District of
    Indiana, Hammond Division.
    v.                                        No. 2:19CR16-001
    BRYANT PORTER,                                   James T. Moody,
    Defendant-Appellant.                         Judge.
    ORDER
    Bryant Porter and his coconspirators sold crack (base) and powder cocaine to
    undercover agents. Police then searched Porter’s home where they turned up more
    cocaine, $30,000 in cash, scales, packaging materials, and multiple firearms. After
    reaching an agreement with the government that included a waiver of his appellate
    rights, Porter pleaded guilty to distributing cocaine base, 21 U.S.C. § 841(a)(1), and
    possessing a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A).
    The district judge sentenced Porter to 168 months in prison, the low end of the
    Sentencing Guidelines range, and three years of supervised release. Porter appealed,
    but his appointed counsel asserts that the appeal is frivolous and seeks to withdraw
    under Anders v. California, 
    386 U.S. 738
    (1967). Though we notified Porter of his rights,
    No. 20-2307                                                                          Page 2
    he has not responded to counsel’s motion. See 7TH CIR. R. 51(b). Counsel’s brief explains
    the nature of the case and addresses the potential issues that an appeal of this kind
    might involve. Because her analysis appears thorough, we limit our review to the
    subjects that counsel has discussed. See United States v. Bey, 
    748 F.3d 774
    , 776 (7th Cir.
    2014).
    Counsel states that she consulted with Porter and confirmed that he does not
    wish to withdraw his guilty plea—rather, he wants to challenge the adjustments to his
    Guidelines range for his leadership role, U.S.S.G. § 3B1.1(c), and for maintaining a drug
    premises
    , id. § 2D1.1(b)(12). Therefore,
    counsel properly declines to assess arguments
    about the validity of the plea. See United States v. Konczak, 
    683 F.3d 348
    , 349 (7th Cir.
    2012); United States v. Knox, 
    287 F.3d 667
    , 670–71 (7th Cir. 2002).
    Counsel considers whether Porter could challenge his sentence, including the
    two enhancements that he identified, and correctly concludes that the appeal waiver
    bars him from doing so. In his plea agreement, Porter waived the right to appeal his
    “conviction and all components of [his] sentence” or the manner in which his sentence
    “was determined or imposed” on any ground other than ineffective assistance of
    counsel. This broad appeal waiver includes challenges to his Guidelines range. And
    because an appeal waiver “stands or falls with the underlying guilty plea” and Porter
    does not wish to challenge his plea, the waiver would have to be enforced. United States
    v. Zitt, 
    714 F.3d 511
    , 515 (7th Cir. 2013). Moreover, counsel rightly rejects any argument
    that an exception to the enforceability of the appeal waiver could apply. See United
    States v. Campbell, 
    813 F.3d 1016
    , 1018 (7th Cir. 2016). Porter’s 108-month and 60-month
    sentences fall below the respective statutory maximums of 20 years (the drug count)
    and life (the firearm count), and the judge did not consider any constitutionally
    impermissible factors at sentencing. See United States v. Bownes, 
    405 F.3d 634
    , 637
    (7th Cir. 2005). So any argument not expressly reserved is barred by the appeal waiver.
    As for the sole issue excluded from the waiver—a potential claim of ineffective
    assistance of counsel—any such claim is best reserved for collateral review where a
    record can be developed. See United States v. Flores, 
    739 F.3d 337
    , 341–42 (7th Cir. 2014).
    Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
    

Document Info

Docket Number: 20-2307

Judges: Per Curiam

Filed Date: 5/18/2021

Precedential Status: Non-Precedential

Modified Date: 5/18/2021