United States v. Phillips, David , 217 F. App'x 551 ( 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NONPRECEDENTIAL DISPOSITION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 February 7, 2007
Decided March 1, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2679
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 04-CR-935-1
DAVID PHILLIPS,
Defendant-Appellant. Joan Humphrey Lefkow,
Judge.
ORDER
David Phillips pleaded guilty to transporting a minor across state lines to
engage in prostitution. See 18 U.S.C. § 2423(a). As part of his plea agreement, he
also admitted facts underlying a collection of other charges that were dismissed.
The comprehensive plea agreement includes a waiver that precludes Phillips from
appealing “any sentence within the maximum provided in the statutes of
conviction” except that he may still challenge the voluntary character of the waiver
and the effectiveness of the lawyer who negotiated it on his behalf. The district
court sentenced Phillips to 210 months’ imprisonment, the low end of the applicable
guidelines range.
No. 06-2679 Page 2
Phillips filed a notice of appeal despite his waiver, but newly appointed
appellate counsel has moved to withdraw because he cannot discern a nonfrivolous
issue for appeal. See Anders v. California, 386 U.S. 738 (1967). We invited Phillips
to respond to counsel’s motion, see Cir. R. 51(b), but he has not done so. Counsel’s
supporting brief is facially adequate, so we limit our review to those potential issues
identified by counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
1997).
Counsel first considers whether Phillips might argue that his plea colloquy
fell short of the requirements of Federal Rule of Criminal Procedure 11, making his
guilty plea involuntary. See Fed. R. Crim. P. 11; Schuh, 289 F.3d at 975 (explaining
that substantial compliance with Rule 11 ensures that plea is knowing and
voluntary). Counsel advises that Phillips wants his plea set aside, so we may
address this potential argument. See United States v. Knox, 287 F.3d 667, 671-72
(7th Cir. 2002). Phillips, though, never moved to withdraw his guilty plea in the
district court, so we would review his plea colloquy only for plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, 467 F.3d
630, 632 (7th Cir. 2006). The district court substantially complied with Rule 11 by
assuring itself that Phillips understood the charge, that he was pleading guilty of
his own volition, that he understood the rights he would forfeit including the right
to appeal his sentence, and that he understood the range of sentences he could
receive. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003); United
States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). Because we discern no
error—-let alone plain error—-in the colloquy, we agree with counsel that any
challenge to the voluntariness of Phillips’s guilty plea would be frivolous.
That conclusion, as counsel notes, also renders frivolous any challenge to the
sentence imposed. An appeal waiver entered in conjunction with a voluntary guilty
plea is itself valid and enforceable, see United States v. Whitlow, 287 F.3d 638, 640
(7th Cir. 2002); United States v. Woolley, 123 F.3d 627, 631-32 (7th Cir. 1997), and
none of the exceptions to the applicability of this waiver are presented by the facts.
Counsel does observe that after Phillips was sentenced he accused his retained
attorney of having a conflict of interest. As we have often stated, however,
ineffective-assistance claims are better suited to collateral review, at which time a
full record may be developed. See Massaro v. United States, 538 U.S. 500, 504-505
(2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.