United States v. Hathaway, Hilliard , 153 F. App'x 391 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2005*
Decided October 31, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1502
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Hammond Division
v.
No. 2:03 CR 59-01
HILLIARD HATHAWAY,
Defendant-Appellant. Rudy Lozano,
Judge.
ORDER
Hilliard Hathaway and his co-defendants bought powder cocaine, processed
it into crack, and sold the product to users on the streets of Gary, Indiana.
Pursuant to a written plea agreement in which he waived any right to appeal his
conviction and sentence, Hathaway pleaded guilty to conspiracy to distribute 50 or
more grams of crack cocaine, 21 U.S.C. §§ 846, 841(a)(1). The district court
sentenced him to 170 months’ imprisonment and five years’ supervised release.
Hathaway appeals despite the waiver, but his appointed attorney moves to
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1502 Page 2
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot
discern any nonfrivolous issue. We informed Hathaway that he could respond to
counsel’s motion, see Cir. R. 51(b), but he has not done so. Our review is thus
limited to the points discussed in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
The waiver in Hathaway’s plea agreement is an unqualified promise 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 binding. 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
Hathaway’s broad, 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. 2000).
Faced with the waiver, counsel considers whether Hathaway might argue
that his guilty plea was not knowing and voluntary because the district court did
not give every admonishment listed in the most recent enactment of Federal Rule of
Criminal Procedure 11. Counsel is correct to evaluate this question because
Hathaway has decided he wants his guilty plea vacated. See United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). In the district court, however, Hathaway
moved to withdraw his guilty plea but retracted that request before the court acted
on it, see Doe v. United States, 51 F.3d 693, 700 (7th Cir. 1995) (holding that
defendant reaffirms guilty plea by retracting motion to withdraw plea), and thus we
would review only for plain error, see United States v. Vonn, 535 U.S. 55, 63 (2002);
United States v. Gibson, 356 F.3d 761, 765-66 (7th Cir. 2004).
Counsel is correct that the district court engaged in a thorough colloquy with
Hathaway; the only pertinent oversight noted by counsel concerns the recently
added requirement that a defendant be told he can present evidence at trial should
he elect to have one. See Fed. R. Crim. P. 11(b)(1)(E). (Counsel also says the
district court neglected to warn Hathaway about the prospect of forfeiture or
restitution, see Fed. R. Crim. P. 11(B)(1)(J), (K), but in this case there was no
possibility of either.) It would be frivolous to argue that not telling Hathaway he
could present evidence so undermined the Rule 11 colloquy that acceptance of his
guilty plea constituted plain error; not only did the district court cover the same
territory by informing Hathaway he could testify himself and compel others to
testify for him, but even with the omission the court substantially complied with
the rule. That was enough to assure the voluntariness of Hathaway’s guilty plea,
United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003), and with it his
waiver of appeal.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.