United States v. Ronald Van Den Heuvel ( 2020 )

NONPRECEDENTIAL DISPOSITION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 January 21, 2020
Decided January 21, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1236
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 17-CR-160
RONALD H. VAN DEN HEUVEL, William C. Griesbach,
Defendant-Appellant. Judge.
ORDER
Ronald Van Den Heuvel pleaded guilty to one count of wire fraud. See 18 U.S.C.
§§ 1343, 1349. He received a sentence of 90 months in prison, below the recommended
guidelines range of 108 to 135 months and the 20-year statutory maximum. He also was
sentenced to three years’ supervised release and ordered to pay restitution of about
$9.5 million. In his plea agreement, he waived his right to appeal both his conviction
and sentence, but he has nonetheless appealed. His appointed lawyer asserts that
Van Den Heuvel no longer wishes to pursue the appeal; Van Den Heuvel has not,
however, submitted his consent to a voluntary dismissal. Counsel therefore moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), stating that the appeal is
frivolous. Van Den Heuvel has not responded. See CIR. R. 51(b). Because
No. 19-1236 Page 2
Van Den Heuvel told counsel that he does not want his guilty plea set aside, counsel
correctly forgoes discussion of possible challenges to the voluntariness of the plea or the
adequacy of the plea colloquy. 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). But counsel does
discuss whether Van Den Heuvel could challenge his sentence and whether the
government breached the plea agreement. We limit our review to these questions
because counsel’s brief explains the nature of this case and addresses the types of issues
that we would expect an appeal of this sort to involve. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Counsel first questions whether, despite the appeal waiver, Van Den Heuvel
could challenge his terms of imprisonment and supervised release, the restitution order,
or the supervised-release conditions. An appeal waiver stands or falls with the guilty
plea of which the waiver is a part. United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013);
United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011). We enforce a waiver where
its terms are unambiguous and the defendant knowingly and voluntarily entered it.
See United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001); United States v. Woolley,
123 F.3d 627, 632 (7th Cir. 1997). As we already observed, Van Den Heuvel does not
seek to undermine his guilty plea, and his written plea agreement unambiguously
waives his right to appeal “any term of imprisonment, term of supervised release, term
of probation, supervised release condition, fine, forfeiture order, and restitution order.”
Moreover, the plea colloquy shows that Van Den Heuvel understood this waiver
provision and voluntarily accepted it: after the judge reviewed it with him and asked if
he understood it, he answered, “Yes, your honor.” See FED. R. CRIM. P. 11; United States
v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). Finally, the record contains no basis for
not enforcing the waiver, such as a sentence in excess of the statutory maximum or
based on an impermissible factor like race. See Keller v. United States, 657 F.3d 675, 681
(7th Cir. 2011). Accordingly, the waiver would render frivolous any appellate
challenges to Van Den Heuvel’s sentence.
Counsel also rightly concludes that Van Den Heuvel could not plausibly argue
that the government breached the plea agreement at sentencing. The government
agreed to recommend a 90-month term of imprisonment in the plea agreement, and it
did not deviate from this provision at the sentencing hearing. When Van Den Heuvel
argued for an even lower term of imprisonment, the government responded that he
deserved a longer sentence—of 90 months. That response was permissible, for “[s]trong
advocacy in favor of the maximum sentence contemplated by a plea agreement does not
constitute a breach.” United States v. Lewis, 842 F.3d 467, 475 (7th Cir. 2016). And
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because 90 months’ imprisonment is exactly what Van Den Heuvel received, any
argument that the government breached the plea agreement would be frivolous.
See United States v. Davis, 761 F.3d 713, 716 (7th Cir. 2014) (concluding no material
breach because government advocated for, and defendant received, sentence
recommended in plea agreement).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.