United States v. Jerome Merriweather

NONPRECEDENTIAL DISPOSITION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 October 23, 2018
Decided November 20, 2018
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-2625
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 15-CR-40046-JPG-6
JEROME MERRIWEATHER, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
Jerome Merriweather pleaded guilty to conspiring to distribute heroin, 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846, and three counts of distributing heroin, 21 U.S.C. §
841(a)(1), (b)(1)(C). In his plea agreement, Merriweather waived his right to appeal “any
aspect of the conviction and sentence, including the manner in which the sentence was
determined or imposed” unless the sentence exceeded the greater of the Sentencing
Guidelines range or any applicable statutory minimum. In that case, Merriweather
could appeal the substantive reasonableness of his sentence. The district court
sentenced him to 228 months’ imprisonment, within the disputed guidelines range of
188 to 235 months (based on an offense level of 31 and criminal history category VI).
No. 17-2625 Page 2
Merriweather filed a notice of appeal, but his appointed counsel has concluded
that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S.
738 (1967). Merriweather opposes counsel’s motion to withdraw. See Cir. R. 51(b).
Merriweather later moved to supplement his 51(b) response, which we allowed, and we
considered the supplemental response in addressing counsel’s motion. Because
counsel’s brief appears to be thorough and addresses potential issues that this type of
appeal might be expected to involve, we limit our review to the subjects that counsel
discusses, along with the issues raised in Merriweather’s responses. See United States
v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Merriweather could challenge his guilty plea,
something Merriweather states he wishes to do. See United States v. Knox, 287 F.3d 667,
671 (7th Cir. 2002). Although Merriweather waived his right to challenge his conviction,
“[a]n appeal waiver stands or falls with the underlying guilty plea.” United States v. Zitt,
714 F.3d 511, 515 (7th Cir. 2013). Thus, enforcement of the waiver depends on whether
the plea was knowing and voluntary. Id. Merriweather moved to withdraw his plea in
the district court, but he did not argue that his plea was not knowing or voluntary; he
contended only that his agreement was an unconscionable adhesion contract that was
unsupported by adequate consideration. We therefore would review a challenge to the
voluntariness of the plea for plain error. United States v. Novak, 841 F.3d 721, 727
(7th Cir. 2016); see United States v. Olano, 507 U.S. 725, 734–735 (1993).
Counsel ponders and properly rejects three potential arguments that
Merriweather’s guilty plea was not knowing or voluntary because of violations of
Federal Rule of Criminal Procedure 11. First, the court did not specifically ask
Merriweather whether his plea “result[ed] from force” as Rule 11(b)(2) requires. But
counsel correctly observes that Merriweather affirmed under oath that the plea was not
the result of threats or promises and was freely and voluntarily entered. The plea
agreement, which Merriweather testified he reviewed with counsel, also stated that it
was not the result of “any threats, duress, or coercion.”
Second, counsel rightly rejects a challenge to the court’s omission of explicit
language informing Merriweather of his right to plead not guilty. FED. R. CRIM.
P. 11(b)(1)(B). But the plea agreement listed Merriweather’s right to plead not guilty.
Moreover, Merriweather already had pleaded not guilty and could not have been
ignorant of that right. See Knox, 287 F.3d at 670.
No. 17-2625 Page 3
Finally, counsel considers arguing that the district court did not fully explain its
obligation to determine the correct sentencing guideline range and consider the
sentencing factors under 18 U.S.C. § 3553(a). But we agree again that such a challenge
would be frivolous. The plea agreement stated that Merriweather understood that the
guidelines were advisory and that the court had discretion to sentence him after
considering the guidelines and the § 3553(a) factors. Substantial compliance with Rule
11 is sufficient, and we see no non-frivolous argument that any of the three deviations
affected Merriweather’s substantial rights. See United States v. Blalock, 321 F.3d 686, 688
(7th Cir. 2003).
Satisfied that the appeal waiver is valid, counsel concludes that the waiver
would render any other possible arguments frivolous. Indeed, Merriweather’s waiver of
his right to contest “any aspect of his conviction” would foreclose a challenge to the
denial of his motion to withdraw his guilty plea. See United States v. Perillo, 897 F.3d 878,
883 (7th Cir. 2018). The same is true of any potential challenge to the sentence, because
the sentence is consistent with the conditions upon which Merriweather waived his
right of appeal; namely, it is within the guideline range and statutory minimum.
Therefore, any attack on the substantive reasonableness of the sentence would be
frivolous. See United States v. Polak, 573 F.3d 428, 432 (7th Cir. 2009).
The appeal waiver would also forestall Merriweather’s proposed challenges to
his conviction based on his innocence of conspiracy, and to his sentence—specifically, to
the career-offender enhancement and the applicable drug quantity. As already noted,
Merriweather waived any challenges to the conviction and the way in which the
sentence was determined or imposed.
Finally, Merriweather opposes his attorney’s motion by arguing that the plea
was not knowing or voluntary because he had ineffective counsel who “coerced” him to
sign the agreement, failed to investigate whether Merriweather could have committed
the charged conspiracy, and failed to inform him of his qualification as a career
offender. Claims of ineffective assistance, however, are best reserved for a collateral
proceeding where Merriweather can develop an evidentiary foundation to support
these claims. See Massaro v. United States, 538 U.S. 500, 505–06 (2003); United States
v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Merriweather’s motion to supplement his response is GRANTED but for the
reasons discussed, Counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.