NONPRECEDENTIAL DISPOSITION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 8, 2010
Decided September 14, 2010
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐2564
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐CR‐272
DAVID A. WAUPOOSE, Jr., William C. Griesbach,
Defendant‐Appellant. Judge.
O R D E R
David Waupoose entered an agreement to plead guilty to voluntary manslaughter,
see
18 U.S.C. § 1112(a), and received an above‐guidelines sentence of 35 years’
imprisonment. As part of his plea agreement, the parties agreed that a 35‐year sentence
would be reasonable in light of the government’s agreement to dismiss an earlier count of
first‐degree murder for the same offense. In return, Waupoose agreed to waive his right to
appeal his conviction and sentence. Waupoose nonetheless filed a notice of appeal, and his
appointed counsel moves to withdraw under Anders v. California,
386 U.S. 738 (1967),
because he has concluded that any argument would be frivolous in light of the appeal
waiver. Waupoose has filed a response opposing counsel’s motion. See CIR. R. 51(b). Our
review is confined to the potential issues addressed in counsel’s brief and in Waupoose’s
response. See United States v. Cano‐Rodriguez,
552 F.3d 637, 638 (7th Cir. 2009); United States
v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 09‐2564 Page 2
Counsel represents that Waupoose does not wish to have his guilty plea set aside,
and Waupoose does not dispute this point in his response to counsel’s motion. Thus,
counsel correctly forgoes discussion of possible challenges to the voluntariness of
Waupoose’s plea or the adequacy of his plea colloquy. See United States v. Knox,
287 F.3d
667, 670‐71 (7th Cir. 2002). Because his guilty plea stands, so do his plea agreement and his
waiver of appeal. See United States v. Nunez,
546 F.3d 450, 453 (7th Cir. 2008); United States v.
Wilson,
481 F.3d 475, 483 (7th Cir. 2007). Accordingly, we agree with counsel that any
potential arguments on appeal related to Waupoose’s sentence or conviction would be
frivolous.
Counsel also examines whether Waupoose could argue that the district court erred
by denying a motion to suppress a confession he gave to police before his arrest. But
counsel correctly concludes that any such argument would be frivolous because in pleading
guilty, Waupoose waived the right to raise constitutional claims that occurred before his
plea. See Tollett v. Henderson,
411 U.S. 258, 267 (1973); United States v. Rodgers,
387 F.3d 925,
933 (7th Cir. 2004).
In his Rule 51(b) response, Waupoose expresses his unhappiness with appellate
counsel’s lack of communication and the fact that his trial attorney did not explore the
possibility of filing a “motion for mental health issues.” Even though ineffective‐assistance
claims fall outside the scope of Waupoose’s appeal waiver, any arguments regarding the
effectiveness of counsel are better advanced in a collateral proceeding so that a more
complete record can be developed. Massaro v. United States,
538 U.S. 500, 504‐05 (2003);
United States v. Harris,
394 F.3d 543, 557‐58 (7th Cir. 2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
