United States v. Michael Nash ( 2016 )

NONPRECEDENTIAL DISPOSITION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 March 18, 2016
Decided March 18, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-2188
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:13CR56-001
MICHAEL NASH,
Defendant-Appellant. Philip P. Simon,
Chief Judge.
ORDER
Michael Nash pleaded guilty to a conspiracy to defraud the United States,
18 U.S.C. § 286, and aggravated identity theft, id. §§ 2, 1028A(a)(1), after he used others’
personal information to file false tax returns with the IRS and collect the resulting
refunds. Nash was sentenced to 48 months’ imprisonment for the conspiracy to defraud
and a consecutive 24 months’ imprisonment for the identity theft. Despite an appeal
waiver, Nash appealed. His lawyer asserts that the appeal is frivolous and seeks to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel has submitted a brief
that explains the nature of the case and addresses the issues that an appeal of this kind
might be expected to involve; Nash declined to respond to counsel’s motion,
No. 15-2188 Page 2
see CIR. R. 51(b). Because counsel’s analysis appears to be thorough, we limit our review
to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel informs us that Nash “may wish to challenge his plea,” so counsel first
considers whether Nash could argue that his plea was not valid. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71
(7th Cir. 2002). Before sentencing, Nash had moved to withdraw his guilty plea,
asserting that it “was not freely and voluntarily given” and that he was innocent. But
new counsel later was appointed for Nash, and he withdrew the motion. We agree with
counsel that any challenge to the validity of Nash’s plea would be frivolous. First, Nash
waived any challenge to the knowingness and voluntariness of his guilty plea when he
withdrew his motion making that very challenge. See United States v. Tichenor, 683 F.3d
358, 363 (7th Cir. 2012) (“[W]ithdrawal of an objection generally results in a waiver of
that argument on appeal.” (quotation marks omitted)); Williams v. United States, 343 F.3d
927, 928 (8th Cir. 2003) (claim in defendant’s 28 U.S.C. § 2255 motion waived because it
replicated claim in his withdrawn plea-withdrawal motion). And even if the argument
were not waived, the district court ensured that Nash’s plea was knowing and voluntary
by complying with Federal Rule of Criminal Procedure 11 in the plea colloquy: the court
advised Nash that he was under oath and could be separately charged with perjury;
addressed the nature of the charges against him, the statutory maximum and minimum
penalties, the trial rights he was forgoing, and the role of the sentencing guidelines; and
explained the consequences of the appeal waiver. See FED. R. CRIM. P. 11(b); United States
v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003); United States v. Akinsola, 105 F.3d 331, 334
(7th Cir. 1997).
It follows, says counsel, that the entire appeal is frivolous. We agree. An appeal
waiver stands or falls with the guilty plea. See United States v. Zitt, 714 F.3d 511, 515
(7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011). Because
Nash’s guilty plea was valid, we must enforce his waiver. The district court did not rely
on any impermissible factors in sentencing, and Nash’s sentences do not exceed the
statutory maximums for his crimes. See Dowell v. United States, 694 F.3d 898, 901–02
(7th Cir. 2012); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). Moreover, as
counsel correctly points out, any challenge to Nash’s conditions of supervised release is
also foreclosed by the waiver. See United States v. Campbell, No. 15-1188, 2016 WL 685119,
at *2 (7th Cir. Feb. 19, 2016). If problems later arise with these conditions, Nash may seek
modification under 18 U.S.C. § 3583(e)(2). See Campbell, 2016 WL 685119, at *3;
United States v. Neal, 810 F.3d 512, 514 (7th Cir. 2016).
No. 15-2188 Page 3
Finally, counsel tells us that Nash has voiced “dissatisfaction with his attorney’s
performance in counseling him to enter into the plea.” But counsel properly recognizes
that claims of ineffective assistance are best raised in a collateral proceeding where an
evidentiary foundation can be developed. See Massaro v. United States, 538 U.S. 500,
504–05 (2003); United States v. Flores, 739 F.3d 337, 340–41 (7th Cir. 2014).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.