United States v. Jordan, John , 181 F. App'x 566 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2006
Decided May 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-4519
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Evansville Division
v.
No. 3:04CR00036-002
JOHN JORDAN, JR.,
Defendant-Appellant. Ronald L. Young,
Judge.
ORDER
John Jordan, Jr. pleaded guilty to conspiring to possess at least five grams of
crack with intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). As part of
his plea agreement Jordan waived any right to appeal his conviction or sentence so
long as the district court accepted the parties’ guidelines stipulations and imposed a
prison term within the resulting range. The district court accepted those
stipulations and sentenced Jordan within the guidelines range to 72 months’
imprisonment (significantly below the 10-year minimum that would have applied
but for the government’s motion for a reduced sentence under 18 U.S.C. § 3553(e)),
three years’ supervised release, a special assessment of $100, and 500 hours of drug
treatment. Despite the waiver, Jordan filed a notice of appeal, but his appointed
No. 05-4519 Page 2
lawyer now moves to withdraw because he cannot discern a nonfrivolous basis for
the appeal. See Anders v. California, 386 U.S. 738 (1967). For his part, Jordan
responded by filing a “Motion for Appeal and New Counsel.” See Cir. R. 51(b).
Because counsel’s supporting brief is facially adequate, we review the potential
issues identified by counsel and Jordan. See United States v. Tabb, 125 F.3d 583,
584 (7th Cir. 1997).
The appeal waiver in Jordan’s plea agreement is an unqualified promise by
Jordan to forego challenging his “conviction or sentence . . . on any ground” whether
by direct appeal or in a collateral proceeding. An appeal waiver entered into
knowingly and voluntarily is valid and enforceable. United States v. Mason, 343
F.3d 893, 893-94 (7th Cir. 2003). Waivers of appeal stand or fall with the guilty
plea itself, and thus Jordan’s unambiguous waiver bars this appeal so long as his
guilty plea was entered into knowingly and voluntarily. United States v. Whitlow,
287 F.3d 638, 640 (7th Cir. 2002).
Faced with the waiver, counsel considers whether Jordan might argue that
his guilty plea was not knowing or voluntary. Counsel, however, does not indicate
whether Jordan wants to withdraw his guilty plea, see United States v. Knox, 287
F.3d 667, 671 (7th Cir. 2002) (instructing that counsel should not consider a Rule 11
argument unless defendant wishes to challenge his plea), nor can we tell from
Jordan’s motion whether he wishes to have his plea set aside. Nevertheless,
because Jordan did not attempt to withdraw his plea in the district court, we would
review only for plain error. See United States v. Vonn, 535 U.S. 55, 62-63 (2002);
United States v. Gibson, 356 F.3d 761, 765 (7th Cir. 2004).
The district court engaged in an extensive plea colloquy with Jordan that
complied with Federal Rule of Criminal Procedure 11(c). During the plea colloquy
Jordan admitted his involvement in the conspiracy and that he had entered into the
plea agreement voluntarily. The district court then informed him of the trial rights
he was giving up, the maximum and minimum punishments he faced, and the effect
of his appeal waiver. Jordan acknowledged his understanding of the district court’s
address at each stage of the colloquy. Thus we agree with counsel that the district
court’s colloquy was enough to assure that Jordan entered his guilty plea knowingly
and voluntarily. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003).
Given that the plea agreement is not open to challenge, Jordan’s appeal
waiver renders any other arguments frivolous. We therefore GRANT counsel’s
motion to withdraw, DENY Jordan’s motion for new counsel, and DISMISS the
appeal.