United States v. Guzman, Tino ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 1, 2005
Decided June 2, 2005
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 03-1478
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 01 CR 1115-5
TINO GUZMAN,
Defendant-Appellant. Milton I. Shadur,
Judge.
ORDER
Tino Guzman pleaded guilty in accordance with a plea agreement to one
count of conspiring to possess and distribute over one kilogram of PCP—punishable
by up to life imprisonment, see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iv)—and was
sentenced to 262 months’ imprisonment. He filed a notice of appeal, but his counsel
perceives only frivolous arguments and therefore moves to withdraw under Anders
v. California, 386 U.S. 738 (1967). Guzman has not responded to counsel’s motion,
see Cir. R. 51(b), and so we limit our review to the potential issues counsel
identifies in his facially adequate supporting briefs. See United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel informs us that Guzman does not want to withdraw his guilty plea,
so he appropriately omits any discussion of potential challenges to the conviction
No. 03-1478 Page 2
itself. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002). And as to
Guzman’s sentence, counsel correctly recognizes that the immediate obstacle
Guzman faces is the wavier of appeal included in his plea agreement. That
provision of the agreement recites that Guzman “knowingly waives the right to
appeal any sentence within the maximum provided in the statute of conviction (or
the manner in which that sentence was determined).” Review is thus foreclosed
unless Guzman could successfully challenge the appeal waiver’s validity, and he
could not do that without also unraveling the entire plea agreement. See United
State v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002); United States v. Hare, 269 F.3d
859, 860-61 (7th Cir. 2001); United States v. Wenger, 58 F.3d 280, 282-83 (7th Cir.
1995). Since Guzman still wants to keep the benefit of the government’s
concessions, any attempt to escape the appeal waiver—including one based on
United States v. Booker, 125 S. Ct. 738 (2005)—would be frivolous. See United
States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005) (stating that Booker did not
create an exception to the rule requiring enforcement of an unqualified appeal
waiver as written); Hare, 269 F.3d at 861 (stating that “a waiver of appeal is valid,
and must be enforced, unless the agreement in which it is contained is annulled”).
Counsel’s motion to withdraw is GRANTED, and this appeal is DISMISSED.