United States v. Madu, Cletus , 164 F. App'x 551 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005
Decided December 7, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3692 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v.
No. 04 CR 337
CLETUS MADU, Samuel Der-Yeghiayan,
Defendant-Appellant. Judge.
Order
Cletus Madu smuggled about 1.3 kilograms of heroin into the United States from
Nigeria. Pursuant to a written agreement in which he waived the right to appeal,
Madu pleaded guilty to importing at least 1 kilogram of a controlled substance. 21
U.S.C. §§ 952(a), 960(a)(1). In September 2004 he was sentenced to 84 months’ im-
prisonment—below the minimum of 10 years that would have applied but for the
“safety valve,” see 18 U.S.C. §3553(f); 21 U.S.C. §960(b)(1)(A)—and five years’ su-
pervised release. Despite the waiver Madu filed a notice of appeal. His appointed
counsel moves to withdraw under Anders v. California, 386 U.S. 738 (1967), because
he cannot discern any nonfrivolous issue. We invited Madu to respond, see Circuit
Rule 51(b), and he has done so. Our review is limited to the points discussed in
counsel’s facially adequate brief and Madu’s response. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first considers whether Madu might challenge the voluntariness of his
guilty plea, but correctly notes that lawyers making an Anders submission should
No. 04-3692 Page 2
not even explore questions about a guilty plea unless the defendant wants it set
aside, an outcome that Madu assured counsel he did not seek. See United States v.
Knox, 287 F.3d 667, 671–72 (7th Cir. 2002). But now, in his Rule 51(b) response,
Madu insists that his plea was involuntary and should be vacated. Our review of
the plea would be for plain error since Madu did not move to withdraw it in the dis-
trict court, see United States v. Vonn, 535 U.S. 55 (2002), and we conclude that any
voluntariness argument would be frivolous.
The district court engaged in a thorough colloquy with Madu pursuant to Fed. R.
Crim. P. 11(c), informing him of the trial rights he was giving up, the maximum and
minimum punishments he faced, and the effect of his appeal waiver. That was
enough to assure the voluntariness of Madu’s guilty plea. See United States v. Blal-
ock, 321 F.3d 686, 688–89 (7th Cir. 2003).
Madu contends that his plea was involuntary because the interpreter over-
stepped his role and provided legal advice. Madu’s submission does not give an ex-
ample of any advice that the interpreter supplied on his own—as opposed to advice
from counsel or the judge that was faithfully translated for Madu’s benefit. Moreo-
ver, Madu does not contend that any statement by the interpreter differed from or
undercut his lawyer’s advice. Nor does he contend that the interpreter failed to sup-
ply him with accurate translations of the plea agreement, the advice from his law-
yer, and the statements of the court. Consequently the translator’s role would not
supply any potential issue for appellate consideration.
Because the plea agreement is not open to challenge, the waiver of appeal ren-
ders any other arguments frivolous. See United States v. Whitlow, 287 F.3d 638, 640
(7th Cir. 2000). The waiver precludes any challenge by appeal or collateral attack to
a “sentence within the maximum provided in the statute of conviction (or the man-
ner in which that sentence was determined).” Developments since the waiver, in-
cluding United States v. Booker, 125 S. Ct. 738 (2005), do not provide grounds for
disregarding it. See United States v. Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005).
We grant counsel’s motion to withdraw and dismiss the appeal as frivolous.