United States v. Terrell McGee ( 2019 )

NONPRECEDENTIAL DISPOSITION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 February 6, 2019
Decided February 6, 2019
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17-2904
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:15-CR-30075-SMY-2
TERRELL McGEE, Staci M. Yandle,
Defendant-Appellant. Judge.
ORDER
Terrell McGee wielded a gun and, with others, robbed a grocery store and a gas
station. His coconspirators shot bystanders during both robberies. The government
charged McGee with two counts each of conspiracy to commit robbery, 18 U.S.C.
§ 1951(a), robbery, id., and discharging a firearm during a crime of violence,
id. § 924(c)(1)(A)(iii), (C)(i). McGee pleaded guilty under the terms of a plea agreement.
The district court sentenced McGee to 300 months in prison, a term below the
Sentencing Guidelines range of 483 to 498 months. McGee filed a notice of appeal, but
his counsel tells us that the appeal is frivolous, and he moves to withdraw. See Anders v.
California, 386 U.S. 738 (1967). McGee has not responded to counsel’s motion. See CIR.
R. 51(b). Counsel’s brief explains the nature of the case and addresses the issues that an
appeal of this kind might be expected to involve. Because counsel’s analysis appears
No. 17-2904 Page 2
thorough, we limit our review to the topics he discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether McGee could challenge the adequacy of his plea
colloquy. Counsel should not have explored this option unless he first advised McGee
of the risks and benefits of bringing the challenge and confirmed with McGee that he
wants to withdraw his guilty plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel does not
say whether he did.
Still, we agree with counsel that it would be frivolous to argue that the court
failed to substantially comply with Federal Rule of Criminal Procedure 11(b) when
accepting McGee’s plea. See Konczak, 683 F.3d at 349. For example, the court ensured
that there was an adequate factual basis of the plea and that McGee understood the
charges against him, the trial rights he was forgoing, the terms of the plea deal, and the
possible punishment. True, after the court pronounced McGee’s sentence, McGee said
that he had expected a larger reduction in the Sentencing Guidelines range for
cooperating with the government and that he “fe[lt] like that should have been further
explained.” But McGee said at his plea hearing that he was satisfied with his counsel’s
representation and that he had had a “sufficient chance and opportunity” to review the
terms of the agreement with counsel.
Relatedly, counsel discusses the court’s denial of McGee’s post-judgment motion
to withdraw his guilty plea. Counsel correctly concludes that it would be frivolous to
challenge that decision because a defendant may not withdraw a guilty plea in the
district court after the sentence is imposed. See FED. R. CRIM. P. 11(e).
Counsel next contemplates challenging the procedural or substantive
reasonableness of McGee’s sentence, and he rightly declines to do so. In his plea
agreement, McGee waived his right to appeal his sentence unless it was longer than the
court-determined Guidelines range; his 300-month sentence is far shorter than the low
end of that range. Because no constitutional exceptions to the appeal waiver apply, we
would enforce it. See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016); United
States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014). Therefore, a challenge to McGee’s
sentence would be frivolous as well.
Counsel raises two final matters. First, he discusses a letter that McGee sent to
the district court after he was sentenced, in which he stated that his constitutional rights
were being violated and that he was “being deprived of life and liberty without due
No. 17-2904 Page 3
process of law.” As counsel points out, McGee seems to be seeking collateral relief,
which the plea agreement bars with limited exceptions. Second, because the
agreement’s bar on collateral attacks does not apply to the challenge, counsel considers
arguing that McGee received ineffective assistance of counsel. But counsel
appropriately concludes that any claim of ineffective assistance of counsel would be
best saved for a collateral proceeding so that McGee may develop a more thorough
evidentiary record. Massaro v. United States, 538 U.S. 500, 508–09 (2003); Delatorre v.
United States, 847 F.3d 837, 844–45 (7th Cir. 2017).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.