United States v. Regina Heavener ( 2018 )

NONPRECEDENTIAL DISPOSITION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 December 20, 2018
Decided December 21, 2018
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1639
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 16-cr-40051-003
REGINA NANCY HEAVENER, Sara Darrow,
Defendant-Appellant. Judge.
ORDER
Regina Nancy Heavener pleaded guilty to four counts of distributing and
conspiring to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846, for which she
faced a statutory minimum of 120 months’ imprisonment. Id. § 841(b)(1)(A). In the plea
agreement and at the change-of-plea hearing, Heavener acknowledged that the court
could not impose a sentence below this threshold unless the government, in its “sole
discretion,” made a motion under 18 U.S.C. § 3553(e) based on her substantial
assistance. The government did not make such a motion at the sentencing hearing,
which apparently surprised Heavener and her counsel. The district court sentenced
Heavener to 120 months in prison on each of the four counts, to run concurrently.
Although her plea agreement included a waiver of the right to appeal “any and all
No. 18-1639 Page 2
issues related to this plea agreement and conviction” or any sentence below the
statutory maximum (life imprisonment), Heavener appealed.
Heavener’s attorney asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Heavener did not respond to counsel’s
submission, see CIR. R. 51(b), which explains the nature of the case and addresses the
issues that an appeal of this kind might be expected to involve. Because counsel’s brief
appears to be an adequate effort to determine whether Heavener has any non-frivolous
grounds for appeal, we limit our review to the subjects he discusses. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel considers whether Heavener could challenge the validity of her guilty
plea—and thus, the validity of the appeal waiver in her plea agreement—but properly
concludes that doing so would be frivolous. See United States v. Gonzalez, 765 F.3d 732,
741 (7th Cir. 2014). It is unclear whether counsel discussed with Heavener whether she
wishes to challenge her guilty plea, as we require. See United States v. Knox, 287 F.3d 667,
671 (7th Cir. 2002). But we need not reject counsel’s submission on this basis, for counsel
has not identified any ground for challenging the voluntariness of the plea, and our
own review of the record convinces us that none exists. See United States v. Zitt, 714 F.3d
511, 515 (7th Cir. 2013); United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The
district court engaged in the proper Rule 11 plea colloquy, during which it confirmed
that Heavener understood the terms of the appellate waiver and ensured that she was
pleading guilty of her own free will. See FED. R. CRIM. P. 11. Because the record
demonstrates that Heavener knowingly and voluntarily pleaded guilty, and because the
prison sentence does not exceed the statutory maximum, the near-total appeal waiver is
enforceable. See Gonzalez, 765 F.3d at 741.
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.