United States v. Neal, Barron ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2006
Decided June 27, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2991
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of
Plaintiff-Appellee, Illinois, Eastern Division
v. No. 04-CR-24-1
BARRON NEAL, Ronald A. Guzmán,
Defendant-Appellant. Judge.
ORDER
Barron Neal pleaded guilty in accordance with a plea agreement to one count
of dealing at least 50 grams of crack, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and was
sentenced to the minimum statutory sentence of 10 years’ imprisonment. In the
plea agreement, Neal recites that he:
knowingly waives the right to appeal any sentence within the
maximum provided in the statute of conviction (or the manner in
which that sentence was determined) . . . [except] a claim of
involuntariness, or ineffective assistance of counsel, which relates
directly to this waiver or to its negotiation.
Neal filed a notice of appeal, but his appointed counsel perceives only frivolous
arguments and therefore moves to withdraw under Anders v. California, 386 U.S.
No. 05-2991 Page 2
738 (1967). We gave Neal the opportunity to respond to counsel’s motion under
Circuit Rule 51(b), but he did not do so in the allotted time. We therefore limit our
review to the potential issues counsel identifies in his facially adequate brief. See
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel informs us that Neal wants his guilty plea set aside, and so has
considered whether he could contend that the plea was involuntary because the
district judge botched the colloquy. But Neal did not move to withdraw his guilty
plea in the district court, so we would review the colloquy under the plain-error
standard. United States v. Vonn, 535 U.S. 55 (2002). We agree with counsel that
any challenge to Neal’s plea would be frivolous because the colloquy substantially
complied with Rule 11 of the Federal Rules of Criminal Procedure. See United
States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002). The court informed Neal of his
right to plead “not guilty,” explained the associated rights, and confirmed an
adequate factual basis. Fed. R. Crim. P. 11(b)(1)(B)-(F), (b)(3). The court also
informed Neal of the nature of the charge, the possible penalties he faced, the effect
of supervised release, and the application of the sentencing guidelines to his case.
Fed. R. Crim. P. 11(b)(1)(G)-(I), (M). Last, the court ensured that Neal was not
pleading under perceived pressure or coercion from the government, Fed. R. Crim.
P. 11(b)(2), explained to him that his sworn testimony at the plea hearing could be
used against him in a future perjury prosecution, Fed. R. Crim. P. 11(b)(1)(A), and
explained the effect of the appellate waiver in his plea agreement on his right to
appeal or otherwise attack his sentence, Fed. R. Crim. P. 11(b)(1)(N).
Review of his sentence is foreclosed unless Neal could successfully challenge
the validity of his appeal waiver, and the adequacy of the plea colloquy assures that
he cannot. See United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001); United
States v. Jeffries, 265 F.3d 556, 557 (7th Cir. 2001). Regardless, a challenge to the
waiver would be a futile undertaking (whether on the grounds left open by the
waiver or not) because Neal’s sentence is the minimum sentence the judge was
authorized to impose. See 21 U.S.C. § 841(b)(1)(A)(iii).
Counsel’s motion to withdraw is GRANTED, and this appeal is DISMISSED.