United States v. Peoples, Nicole R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 2, 2005
Decided June 2, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-4178
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 03-40061-002-JLF
NICOLE PEOPLES,*
Defendant-Appellant. James L. Foreman,
Judge.
ORDER
Nicole Peoples and another woman distributed between 50 and 150 grams of
crack during February and March 2003. Peoples pleaded guilty to one count of
conspiracy to distribute, 21 U.S.C. §§ 846, 841(a)(1), and three counts of
distributing crack, id. § 841(a)(1), and was sentenced to concurrent terms of 100
months’ imprisonment after a downward departure under U.S.S.G. § 5K1.1 for
substantial assistance. She filed a notice of appeal, but the government moved to
dismiss because her written plea agreement includes an appeal waiver. Counsel for
Peoples responded by seeking leave to withdraw and submitting what we have
*
Peoples married and changed her name to Parra while her case was pending
before the district court, but this order adopts counsel’s convention and refers to her
by her former name.
No. 04-4178 Page 2
construed as a brief under Anders v. California, 386 U.S. 738 (1967). See United
States v. Mason, 343 F.3d 893, 894–95 (7th Cir. 2003). We invited Peoples to
respond to counsel’s Anders brief, see Cir. R. 51(b), but she has not done so.
Because counsel’s brief is facially adequate, we review only the potential issues that
counsel identifies. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir.
2002); United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
The appeal waiver provides that Peoples will not “contest any aspect of her
conviction and sentence that could be contested under . . . any . . . provision of
federal law” whether on direct appeal or in collateral review (except for collateral
challenges based on retroactive amendments promulgated by the Sentencing
Commission or retroactive changes in the law that could prove her innocence). The
agreement explicitly waives Peoples’ right to challenge the constitutionality of the
guidelines and “any right to have facts that determine her offense level under the
Guidelines be alleged in an indictment and be found by a jury beyond a reasonable
doubt.”
Counsel informs us that Peoples has not expressed a desire to withdraw her
guilty pleas, and thus he has not explored any potential issues relating to the plea
colloquy or the voluntariness of those pleas. See United States v. Knox, 287 F.3d
667, 671–72 (7th Cir. 2002). And since Peoples does not wish to withdraw those
pleas (and thereby undo the benefit of a reduced sentence promised in return), she
is bound by the waiver of appeal. See United States v. Whitlow, 287 F.3d 638, 640
(7th Cir. 2002) (noting that an appeal waiver “stands or falls” with the plea); United
States v. Hare, 269 F.3d 859, 860–61 (7th Cir. 2001) (same). There is no exception
to the waiver’s enforceability for any argument under United States v. Booker, 125
S. Ct. 738 (2005). See United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005).
Because we agree with counsel that raising the potential issues that he
identified would be frivolous, we GRANT his motion to withdraw and DISMISS the
appeal.