United States v. Johnson, Keith B.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 2005
Decided November 22, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2378
UNITED STATES of AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 03-20064-001
KEITH BENNETT JOHNSON, Michael P. McCuskey,
Defendant-Appellant. Chief Judge.
ORDER
Keith Bennett Johnson was charged with bank fraud, 18 U.S.C. § 1344, and
wire fraud, id. § 1343. Johnson entered into a written plea agreement that called
for him to plead guilty to the bank-fraud count and waive his right to appeal his
conviction or sentence. The district court sentenced him to 46 months of
imprisonment to be followed with five years of supervised release. Johnson filed a
notice of appeal despite the waiver, but his attorney now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because she is unable to find a
nonfrivolous issue for appeal. Johnson was notified of counsel's motion, see Cir. R.
51(b), and has responded. We limit our review of the record only to those potential
issues identified in counsel's facially adequate brief, see United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam), and in Johnson's submissions.
No. 05-2378 Page 2
Johnson’s plea agreement includes an unqualified promise to forego
challenging, whether by direct appeal or collateral proceeding, “any and all issues
relating to this plea agreement and conviction and to the sentence . . . on any
ground whatever.” An appeal waiver is enforceable if entered into knowingly and
voluntarily. United States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005). Thus,
Johnson is barred from proceeding with this appeal unless he can overcome his
waiver, and he cannot contest the waiver without challenging the entire plea
agreement. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002).
Counsel represents that Johnson has no desire to withdraw his guilty plea and, in
the process, give up the benefits he received under the plea agreement. See United
States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002) (withdrawing guilty plea may
result in losing bargained-for benefits in plea agreement). Accordingly, an attempt
to invalidate the waiver would be frivolous. See United States v. Hare, 269 F.3d
859, 860-61 (7th Cir. 2001). It matters not that Johnson proposes to argue that his
attorney mishandled aspects of his case; the waiver he executed encompasses
claims of ineffective assistance by trial counsel, and since the alleged deficiency is
unrelated to the negotiation of the appeal waiver, the waiver is no less effective in
precluding an argument about counsel’s performance. See Jones v. United States,
167 F.3d 1142, 1145 (7th Cir. 1998).
Accordingly, we GRANT counsel’s motion to withdraw and dismiss the
appeal.