United States v. David Hardin, Jr.

NONPRECEDENTIAL DISPOSITION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 July 17, 2014
Decided July 17, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13-3127
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:13cr6-002
DAVID LEE HARDIN, JR.,
Defendant–Appellant. Rudy Lozano,
Judge.
ORDER
David Hardin, Jr., and an accomplice were arrested after robbing a bank in
Hammond, Indiana. Hardin pleaded guilty to armed bank robbery, see 18 U.S.C.
§ 2113(a), and using a firearm in furtherance of that crime, see id. § 924(c), and was
sentenced to 235 months’ imprisonment. Hardin’s plea agreement contains a provision
waiving his right “to appeal or to contest my conviction and my sentence … or the
manner in which my conviction or my sentence … was determined or imposed.”
Hardin filed a notice of appeal anyway, but his appointed attorney asserts that any
argument would be frivolous and seeks to withdraw under Anders v. California, 386 U.S.
738 (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. Hardin
No. 13-3127 Page 2
has responded to counsel’s motion. See CIR. R. 51(b). Because the analysis in the brief
appears to be thorough, we limit our review to the subjects discussed in counsel’s brief
and Hardin’s response. 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 alerts us that Hardin may wish to challenge the voluntariness of his
guilty pleas and properly concludes that such a challenge would be frivolous. Hardin
did not move to withdraw his guilty pleas in the district court, so we would review the
plea colloquy for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). During the plea colloquy,
the district court substantially complied with Federal Rule of Criminal Procedure 11.
The judge ensured that Hardin understood the charges against him, the penalties he
faced, FED. R. CRIM. P. 11(b)(1)(G)-(K), (M), the various trial and appellate rights he was
waiving by pleading guilty, id. at 11(b)(1)(B)-(F), and the consequences of his appeal
waiver, id. at 11(b)(1)(N). The government proffered a factual basis for the crimes,
which Hardin acknowledged was correct. See id. at 11(b)(3). We agree with counsel that
a challenge to the voluntariness of Hardin’s pleas would be frivolous.
Counsel and Hardin both consider whether he could challenge the district court’s
imposition of a 2-level increase in his offense level for physically restraining another
person to facilitate commission of the offense. See U.S.S.G. § 2B3.1(b)(4)(B). But as
counsel properly explains, any such challenge would be precluded by the broad appeal
waiver in his plea agreement. See United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008).
Because Hardin entered his guilty plea voluntarily, he is bound by his appeal waiver.
See United States v. Kilcrease, 665 F.3d 924, 927, 929 (7th Cir. 2012); United States v.
Quintero, 618 F.3d 746, 752 (7th Cir. 2010).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.