United States v. Turner, James E.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 10, 2005
Decided November 14, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3704
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Evansville
v. Division
JAMES E. TURNER, No. 3:03CR00010-001
Defendant-Appellant.
Richard L. Young,
Judge.
ORDER
Police arrested James Turner when he delivered 30 grams of crack to a street
dealer working as an informant. Turner pleaded guilty to conspiring to possess at
least 5 grams of crack with the intent to distribute, see 21 U.S.C. §§ 846, 841(a)(1);
as part of his plea agreement Turner waived any right to appeal his conviction and
sentence so long as the district court accepted the parties’ guideline stipulations
and imposed a prison term within the resulting range. The district court accepted
the stipulations and sentenced Turner within the guideline range to 170 months’
imprisonment, eight years’ supervised release, and a $100 special assessment.
Turner has filed an appeal despite the waiver, but his appointed counsel moves to
withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders
v. California, 386 U.S. 738 (1967). Turner has responded to the motion under
Circuit Rule 51(b), and we confine our review to the potential issues identified in
No. 04-3704 Page 2
counsel’s facially adequate brief and Turner’s response. See United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
The appeal waiver in Turner’s plea agreement was triggered when the
district court accepted the parties’ sentencing stipulations and imposed a sentence
within the resulting guideline range. That waiver is an unqualified promise by
Turner to forego challenging his “conviction and sentence . . . on any ground”
whether by direct appeal or in a collateral proceeding. A defendant’s knowing and
voluntary waiver of his right to appeal is valid and enforceable. See United States
v. Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005). Waivers of appeal stand or fall
with the guilty plea itself, and thus Turner’s unambiguous waiver bars this appeal
so long as his guilty plea was entered into knowingly and voluntarily. United
States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002).
Forced to confront the waiver, counsel considers whether Turner might argue
that his guilty plea should be set aside on the ground that the district court did not
comply fully with Rule 11 of the Federal Rules of Criminal Procedure in taking the
plea. Counsel is correct to address this question because Turner wants to back out
of his guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Turner did not attempt to withdraw his plea in the district court, and thus he would
have to demonstrate plain error before we would set it aside on appeal. See United
States v. Vonn, 535 U.S. 55, 58–59 (2002); United States v. Gibson, 356 F.3d 761,
765–66 (7th Cir. 2004).
Counsel concludes that any Rule 11 argument would be frivolous because the
district court substantially complied with the rule’s requirements. We agree. First,
counsel points out that the district court did not mention Turner’s right to an
attorney, see Fed. R. Crim. P. 11(b)(1)(D), but Turner could not possibly have been
harmed by the omission because appointed counsel was with him during the
colloquy, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988). Second,
counsel notes that the district court did not inform Turner of the recently added
requirement that he could testify on his own behalf if he chose to go to trial. See
Fed. R. Crim. P. 11(b)(1)(E). But because substantial compliance with Rule 11 is
sufficient to ensure the validity of the plea, see United States v. Blalock, 321 F.3d
686, 688–89 (7th Cir. 2003); Schuh, 289 F.3d at 975, and considering the district
court’s otherwise extensive colloquy, we agree with counsel that a challenge to the
plea based on these omissions would be frivolous. Therefore both the guilty plea
and the appeal waiver stand.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this
appeal.