United States v. Martinez, Everardo , 250 F. App'x 181 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 September 26, 2007
Decided October 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-4342 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Eastern District of Wiscon-
Plaintiff-Appellee, sin.
v.
No. 04-CR-201
EVERARDO M. MARTINEZ, Lynn Adelman, Judge.
Defendant-Appellant.
Order
Everardo Martinez pleaded guilty to distributing cocaine and has been sen-
tenced to 96 months’ imprisonment. 18 U.S.C. §841(a)(1). A waiver of appeal—
except on several grounds not now relevant—was part of the agreement. Despite
the waiver, Martinez directed the clerk of the district court to file a notice of appeal
on his behalf. His appointed lawyer now seeks permission to withdraw, explaining
in a filing under Anders v. California, 386 U.S. 738 (1967), that he thinks the ap-
peal frivolous in light of the waiver. Martinez has not accepted our invitation to re-
spond to counsel’s submission. See Circuit Rule 51(b).
A waiver of appeal stands or falls with the plea to which it pertains. See Nunez
v. United States, 495 F.3d 544 (7th Cir. 2007) (collecting authority). So there are two
possible ways to proceed with an appeal. Martinez either can argue that the plea is
involuntary and must be set aside (and, if so, the waiver would go with it), or can
present an argument within the scope of the exceptions to the waiver. Counsel tells
us that she has consulted with Martinez, and that he does not want to advance ei-
No. 06-4342 Page 2
ther argument. He stands by his plea of guilty. This means, however, that the ap-
peal is frivolous. See United States v. Wilson, 481 F.3d 475, 483 (7th Cir. 2007).
Counsel suspects that Martinez, who has expressed dissatisfaction with the per-
formance of his former lawyer, may want to argue that he has received ineffective
assistance of counsel. As we observed in Nunez, however, such an argument is
barred by the waiver as long as the plea was voluntary—and because Martinez does
not want to withdraw his plea of guilty, he has waived any opportunity to contest
the quality of the legal assistance he received.
The motion to withdraw is granted, and the appeal is dismissed as frivolous.