United States v. Parrish, Paul ( 2007 )

NONPRECEDENTIAL DISPOSITION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 April 25, 2007
Decided April 25, 2007
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3672
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Evansville Division.
v.
No. 3:04CR00018-001
PAUL PARRISH,
Defendant-Appellant. Richard L. Young,
Judge.
ORDER
Paul Parrish pleaded guilty to conspiracy to possess with intent to distribute
powder cocaine and crack. See 21 U.S.C. §§ 846, 841(a)(1). The parties agreed,
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), that Parrish would be
sentenced to a prison term of 262 months if the district court accepted the plea
agreement. Parrish also agreed that he would forgo any appeal of his conviction or
sentence if the court adopted the parties’ sentencing-guidelines stipulations and
imposed a prison term consistent with the corresponding range. The court did
No. 06-3672 Page 2
accept the plea agreement and sentenced Parrish to 262 months’ imprisonment, the
low end of the range resulting from the parties’ stipulations.
Parrish, though, directed his attorney to file a notice of appeal despite the
waiver, and counsel now moves to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738, 744
(1967). Parrish responded to counsel’s motion. See Cir. R. 51(b). Our review is
limited to the potential issues identified in counsel’s facially adequate brief and
Parrish’s Rule 51(b) response. See United States v. Schuh, 289 F.3d 968, 973-74
(7th Cir. 2002).
Parrish wants to challenge his prison sentence. He says that his attorney led
him to believe that the government would not file an information to raise the
minimum prison term from 10 to 20 years based on his prior drug conviction, see 21
U.S.C. §§ 841(b)(1), 851, even though the parties had agreed in writing that the
information would be filed. Parrish adds that the information was not filed before
he pleaded guilty, and thus should be deemed ineffective. He insists that he must
be resentenced to a prison term somewhere between 10 years and life. Counsel,
though, recognizes that this and any other argument would be frivolous in view of
Parrish’s appeal waiver. See Sapia v. United States, 433 F.3d 212, 217 (2d Cir.
2005) (holding that defendant can waive compliance with procedural requirements
of § 851); United States v. Mooring, 287 F.3d 725, 728 (8th Cir. 2002) (same); United
States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002) (same). That waiver is
enforceable because the district court adopted the parties’ sentencing stipulations
and imposed a sentence within the corresponding range—indeed, the very sentence
Parrish negotiated. Parrish confirmed at the plea colloquy that he discussed the
waiver with his attorney and that he understood that he was giving up his right to
appeal. Thus, the appeal waiver is binding and renders frivolous any potential
challenge to Parrish’s conviction or sentence. See United States v. Nave, 302 F.3d
719, 720-21 (7th Cir. 2002); United States v. Woolley, 123 F.3d 627, 631-33 (7th Cir.
1997).
In any event, after Parrish objected at sentencing to the late filing of the
enhancement information, the district judge asked him if he still wanted to be
bound by his plea agreement, and he said that he did. Parrish thus ratified his
guilty plea after the § 851 information was filed, curing the procedural shortcoming.
Cf. Doe v. United States, 51 F.3d 693, 700-01 (7th Cir. 1995) (noting that defendant
who filed but then withdrew motion to withdraw guilty plea effectively ratified
guilty plea with full knowledge of purported defect in original plea); United States v.
Billington, 844 F.2d 445, 450 (7th Cir. 1988) (concluding that defendant who
declined offer to reconsider guilty plea ratified initial plea, removing doubt as to
voluntariness of plea). Moreover, the late-filed § 851 information did not impact
No. 06-3672 Page 3
Parrish’s sentence; he agreed to a sentence of 262 months both in the written
agreement and at the plea colloquy, and that is exactly the sentence he received.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.