United States v. Abdalla, John B. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2005
Decided January 11, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3860
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division
v.
No. 01 CR 110
JOHN B. ABDALLA,
Defendant-Appellant. Larry J. McKinney,
Chief Judge
ORDER
John Abdalla pleaded guilty to conspiracy to possess and distribute
pseudoephedrine, 21 U.S.C. §§ 846, 841(c)(2). Abdalla came to the attention of
authorities after a truck rented in his name was stopped for speeding and found to
contain 1.6 million pseudoephedrine pills. Abdalla cooperated in the government’s
investigation as a condition of his plea agreement, which also includes a waiver of any
right to appeal if his sentence of imprisonment imposed is within or below the guideline
range applicable to stipulations reached by the parties. Because of Abdalla’s substantial
cooperation with law enforcement authorities, the government asked the district court to
depart from the guidelines and impose a lesser sentence pursuant to § 5.K1.1 of the
Sentencing Guidelines. The district court agreed and sentenced Abdalla to 97 months’
No. 04-3860 Page 2
imprisonment, well below the range of 168 to 210 months the parties originally
anticipated. The court also imposed three years of supervised release and a $100 special
assessment. Abdalla appeals despite his waiver, but his appointed attorney moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern
any nonfrivolous issue. We confine our review to the potential issues counsel identifies
and those proposed in Abdalla’s response filed pursuant to Circuit Rule 51(b). See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
The appeal waiver in Abdalla’s plea agreement was triggered when the district
court accepted the parties’ sentencing stipulation and imposed a sentence of
imprisonment below the resulting range. The waiver in this case is an unqualified
promise to forego challenging his conviction and sentence, either by direct appeal or
collateral attack, “on any ground.” An appeal waiver is enforceable if entered into
knowingly and voluntarily. United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.
2005). Thus, Abdalla simply cannot proceed with this appeal unless he can overcome his
waiver, and he cannot contest the waiver without challenging the entire plea agreement.
See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). Counsel represents that
Abdalla does not want to revoke his guilty plea and, in the process, forego the benefits he
received under the plea agreement. See United States v. Knox, 287 F.3d 667, 670-71 (7th
Cir. 2002) (stating that withdrawing guilty plea may result in losing bargained-for
benefits in plea agreement). Accordingly, an attempt to invalidate the waiver would be
frivolous, see United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001).
Abdalla states that he can argue on appeal that his attorney was ineffective by not
arguing for a safety-valve sentence reduction under 18 U.S.C. § 3553(f)(1)-(5). Although
an argument of ineffective negotiation of a plea waiver survives the waiver itself, Jones
v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998), Abdalla’s argument that he would
be eligible for the reduction is unsupported by the record. It furthermore appears that
Abdalla would be ineligible for the safety-valve reduction because he admits in the
presentence investigation report that he organized and supervised the drug conspiracy
(“I arranged to transport a large quantity of pseudoephedrine; I enlisted the help of my
friends. . . . I admitted the truck was mine.”). See 18 U.S.C. § 3553(f)(4). Because
Abdalla cannot show that he was prejudiced by counsel’s failure to argue for the safety-
valve reduction, see Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005), this
argument is frivolous.
Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal.