United States v. Thomas Tynan ( 2022 )

NONPRECEDENTIAL DISPOSITION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 10, 2022
Decided March 10, 2022
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-1583
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:19-CR-00732(1)
THOMAS E. TYNAN,
Defendant-Appellant. John Z. Lee,
Judge.
ORDER
Thomas Tynan pleaded guilty to one count of bank robbery, 18 U.S.C. § 2113(a),
for which he was sentenced to 36 months’ imprisonment and 3 years’ supervised
release. Although his plea agreement contains an appeal waiver, Tynan filed a notice of
appeal. His appointed counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the
nature of the case and raises potential issues that an appeal like this would be expected
No. 21-1583 Page 2
to involve. Because counsel’s analysis appears thorough, and Tynan has not responded
to the motion, see CIR. R. 51(b), we limit our review to the subjects that counsel
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel confirms that Tynan wishes to withdraw his guilty plea, see United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), so she explores possible challenges to
his plea. A defendant can withdraw a guilty plea only for fair and just reasons, which
include his legal or actual innocence or his entry of an unknowing or involuntary guilty
plea. FED. R. CRIM. P. 11(d)(2)(B); United States v. Barr, 960 F.3d 906, 917 (7th Cir. 2020).
Counsel properly concludes that Tynan cannot raise a nonfrivolous challenge based on
a claim of innocence. As she explains, he waived any such challenge at his plea hearing
when he admitted the factual basis for the charges. See United States v. Robinson, 964
F.3d 632, 639–40 (7th Cir. 2020).
Counsel also rightly concludes that Tynan cannot raise a nonfrivolous challenge
to the voluntariness of the plea. As she notes, the record of the plea colloquy does not
reflect that Tynan was either coerced or—as he would like her to argue—induced to
plead guilty by a promise of a prison sentence no longer than a year and a day. The
transcript reflects that the district court complied with Rule 11 of the Federal Rules of
Criminal Procedure and confirmed that no one pressured him to sign the agreement or
made promises to induce him to sign the agreement. No evidence undermines these
sworn statements, which are presumed true. See United States v. Graf, 827 F.3d 581, 584
(7th Cir. 2016).
Next, counsel explores whether Tynan could attack any aspect of his sentence
but properly concludes that doing so would be pointless. The district court correctly
calculated a guidelines range of 33 to 41 months, based on a total offense level of 19
(which included a two-level enhancement for taking property from a financial
institution, see U.S.S.G. §§ 2B3.1(a), (b)(1)), and a criminal-history category of II. Any
challenge to the reasonableness of Tynan’s sentence would also be futile. Tynan’s 36-
month prison sentence is within the guidelines range, so we would presume it to be
reasonable. See United States v. Wehrle, 985 F.3d 549, 557 (7th Cir. 2021). Like counsel, we
see no basis in the record that might rebut that presumption. The district court
adequately addressed the 18 U.S.C. § 3553(a) factors such as the nature of Tynan’s
offense and criminal history, noting that Tynan repeatedly resorted to criminal activity
when he faced financial difficulty or other stressors. The court also acknowledged
Tynan’s mitigating arguments, agreeing that he had the potential to make a positive
impact in the community through his education and consistent employment.
No. 21-1583 Page 3
Counsel then evaluates whether Tynan could challenge the term of supervised
release but rightly concludes that Tynan waived any such argument when he declined
to object to the term and conditions at the sentencing hearing. See United States v.
Canfield, 2 F.4th 622, 626–27 (7th Cir. 2021). At sentencing, Tynan objected to only one
supervised-release condition (an objection that the court granted), waiving any
challenge to the remaining conditions.
Finally, counsel considers whether Tynan could argue that his trial counsel
rendered ineffective assistance but appropriately concludes that any such claim is best
reserved for collateral review, where a record could be developed. See Massaro v. United
States, 538 U.S. 500, 504 (2003); United States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.