United States v. Gilbert Manning ( 2014 )

NONPRECEDENTIAL DISPOSITION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 November 26, 2014
Decided December 2, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1479
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:12-cr-30330-DRH-1
GILBERT MANNING, David R. Herndon,
Defendant-Appellant. Judge.
ORDER
For several years Gilbert Manning and others distributed marijuana in southern
Illinois and eastern Missouri. Manning was charged with conspiracy to possess and
distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1), and distribution of marijuana, id.
§ 841(a)(1). He agreed to plead guilty to both charges, and his written plea agreement
includes a waiver of the right to appeal the convictions or the sentence if within the
guidelines range “as determined by the Court.” A magistrate judge conducted the plea
colloquy and recommended that the district court accept Manning’s guilty pleas. See 28
U.S.C. § 636(b)(1); United States v. Harden, 758 F.3d 886, 891 (7th Cir. 2014). The district
court adopted that recommendation without objection from Manning. The district court
found that the conspiracy had involved more than 1,000 kilograms of marijuana (even
though, as part of the plea agreement, the government did not insist that Manning admit
No. 14-1479 Page 2
a drug quantity significantly greater than 100 kilograms, which allowed him to avoid a
20-year statutory minimum). The court imposed 210 months’ imprisonment for the
conspiracy count—the bottom of the guidelines range as calculated by the court—and
120 months for the distribution count, to run concurrently. See 21 U.S.C.
§§ 841(b)(1)(B)(vii), (b)(1)(D), 851.
Manning filed a notice of appeal, prompting the government to move for
dismissal based on the appeal waiver. A motions judge deferred ruling on that
submission until after Manning’s appointed lawyer had filed either a merits brief or a
motion to withdraw under Anders v. California, 386 U.S. 738 (1967). See United States v.
Manning, 755 F.3d 455, 455–56 (7th Cir. 2014). Manning’s attorney has filed the latter,
asserting that the appeal is frivolous. Manning opposes his lawyer’s motion. See CIR. R.
51(b). Counsel’s brief explains the nature of the case and addresses the points that an
appeal of this kind might be expected to involve. Because the analysis in the brief
appears to be thorough, we limit our review to the subjects discussed in counsel’s brief
plus Manning’s response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United
States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel tells us that Manning does not wish to challenge his guilty pleas and thus
forgoes discussing the voluntariness of those pleas or the adequacy of the plea colloquy.
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). Manning does not directly contradict counsel’s assertion
that he is satisfied with his guilty pleas, but in his Rule 51(b) response he equivocates by
suggesting that he’s willing to stand by his plea agreement only if his overall sentence is
reduced to 120 months, the statutory minimum applicable to the conspiracy conviction.
See 21 U.S.C. §§ 841(b)(1)(B), 851.
Manning’s equivocation does not matter. The magistrate judge concluded that he
pleaded guilty knowingly and voluntarily, and Manning waived his right to appellate
review of that determination by not objecting to the magistrate judge’s report and
recommendation before it was accepted by the district court. See FED. R. CRIM. P. 59(b)(2);
United States v. Hall, 462 F.3d 684, 688 (7th Cir. 2006); United States v. Hernandez-Rivas, 348
F.3d 595, 598 (7th Cir. 2003). And even if Manning could escape that waiver, he did not
move to withdraw his guilty pleas in the district court, and thus we would review the
plea colloquy only for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013).
No. 14-1479 Page 3
We would not find error, plain or otherwise. The transcript of the plea colloquy
establishes that the magistrate judge substantially complied with Federal Rule of
Criminal Procedure 11, which is enough to shield a guilty plea from challenge on direct
appeal. See United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003); United States v.
Akinsola, 105 F.3d 331, 334 (7th Cir. 1997). The magistrate judge advised Manning that
the 100-kilogram amount stated in the plea agreement and factual basis would not bind
the district judge, who would apply the sentencing guidelines independently and also
consider the factors in 18 U.S.C. § 3553(a) when determining Manning’s sentence. In his
Rule 51(b) response, Manning says that the language of the plea agreement is
“confusing” because, he insists, he would not have knowingly given up the right to
challenge on appeal his sentence or any underlying factual dispute. But the magistrate
judge admonished Manning about the rights he was waiving by pleading guilty,
including “most of [his] appellate rights.” Manning acknowledged his understanding
and also replied “no” when asked if anyone had threatened or coerced him or made
additional promises so that he would accept the plea agreement. See FED. R. CRIM. P.
11(b)(1), (b)(2); United States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010) (explaining that
district court’s brief inquiry about unequivocal appeal waiver in written plea agreement
sufficiently demonstrated that defendant understood and knowingly agreed to appeal
waiver). There is no reason to disbelieve Manning’s sworn statements, which are
presumed to be truthful. See Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010);
United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995).
We thus agree with counsel that any appellate challenge to Manning’s guilty
pleas would be frivolous. It follows, says counsel, that the appeal itself is frivolous given
Manning’s broad appeal waiver. We likewise agree with that assessment. Because an
appeal waiver stands or falls with the underlying guilty plea, see United States v. Zitt, 714
F.3d 511, 515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011),
we must enforce Manning’s waiver. No exception would apply, as his overall sentence
does not exceed the statutory maximum or the calculated guidelines range, and the
district court did not rely on any impermissible factor when imposing the sentence, see
Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012); United States v. Bownes, 405 F.3d
634, 637 (7th Cir. 2005). And since the appeal waiver is binding, all of the sentencing
arguments that Manning discusses in his Rule 51(b) response necessarily are frivolous.
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal. The
government’s motion to dismiss is DENIED as unnecessary.