United States v. Cabell, Emanuel ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 15, 2006
Decided November 15, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-2987
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern District of
Indiana, Evansville Division
v.
No. 3:04CR00017-002
EMANUEL CABELL,
Defendant-Appellant. Richard L. Young,
Chief Judge.
ORDER
Emanuel Cabell pleaded guilty to conspiracy to possess and distribute
cocaine, crack and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). In his written plea
agreement, Cabell waived any right to appeal his conviction or sentence so long as
the district court used the parties’ stipulations in calculating the guidelines range
and imposed a prison sentence within that range. The district court met that
condition and sentenced Cabell to 324 months’ imprisonment, two years’ supervised
release, and a $100 special assessment. Despite his waiver, Cabell filed a notice of
appeal, and appointed counsel now moves to withdraw because he cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 744 (1967).
Cabell has accepted our invitation to respond to counsel’s motion. See Cir. R. 51(b).
No. 05-2987 Page 2
Counsel’s supporting brief is facially adequate, so we limit our review to the
potential issues identified by counsel and Cabell. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
The appeal waiver in Cabell’s plea agreement was triggered when the district
court accepted the parties’ sentencing stipulations and imposed a prison term
within the resulting guidelines range. That waiver is Cabell’s broad promise to
forego challenging his conviction or sentence “on any ground.” An appeal waiver is
enforceable if knowing and voluntary, United States v. Lockwood, 416 F.3d 604, 608
(7th Cir. 2005), so Cabell cannot proceed with this appeal unless he can overcome
his waiver. And he cannot contest the waiver without challenging his guilty plea.
See United States v. Cieslowski, 410 F.3d 353, 361-362 (7th Cir. 2005); United States
v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002).
Thus forced to confront the waiver, counsel considers whether Cabell might
argue that noncompliance with Fed. R. Crim. P. 11(b) rendered his guilty plea
involuntary. Cabell has said he wants the plea set aside, so counsel has
appropriately explored this question. See United States v. Knox, 287 F.3d 667, 670-
71 (7th Cir. 2002). Cabell, though, did not move to withdraw his guilty plea in the
district court, so our review would be for plain error. See United States v. Vonn, 535
U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, No. 05-3514, 2006 WL
3055948, *2 (7th Cir. Oct. 30, 2006).
We agree with counsel that an argument premised on Rule 11 would be
frivolous. Although counsel notes that the district court did not mention Cabell’s
right to court-appointed counsel, see Fed. R. Crim. P. 11(b)(1)(D), Cabell could not
have been harmed by this omission since an appointed lawyer was with him during
the colloquy, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988). Counsel
further notes that the district court failed to mention that Cabell could “present
evidence” if he proceeded to trial, see Fed. R. Crim. P. 11(b)(1)(E), but the court
effectively said just that in telling Cabell he could testify in his own defense and
compel others to testify for him. Cabell indicated that he understood the effects of
his guilty plea. Even with the noted omissions, the district court substantially
complied with the requirements of Rule 11, assuring both the voluntary nature of
Cabell’s plea, see United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003), and
the enforceability of his appeal waiver.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.