United States v. Andrews, Omari

NONPRECEDENTIAL DISPOSITION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 25, 2007
Decided July 26, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 06-3643
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04-CR-860-1
OMARI ANDREWS,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
Omari Andrews pleaded guilty to one count of possessing crack with intent to
distribute, see 21 U.S.C. § 841(a)(1), and one count of possessing a firearm in
furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A). In his plea
agreement Andrews waived any right to appeal his convictions or sentences, but he
nevertheless filed a notice of appeal. His appointed lawyer now moves to withdraw
because he cannot discern a nonfrivolous basis for the appeal. See Anders v.
California, 386 U.S. 738 (1967). Andrews has not accepted our invitation to
comment on counsel’s motion. See Cir. R. 51(b). Because counsel’s supporting brief
is facially adequate, we limit our review to the potential issues identified by
counsel. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
No. 06-3643 Page 2
Andrews promised in his plea agreement to forego challenging his convictions
or sentences so long as the district court sentenced him within the statutory
maximum and ran the federal terms of imprisonment concurrent with Andrews’s
prior undischarged state term of imprisonment. Andrews was subject to a
maximum of 40 years’ imprisonment on the drug count, see 21 U.S.C.
§ 841(b)(1)(B)(iii), and life on the firearm count, see 18 U.S.C. § 924(c)(1)(A)(i). The
district court sentenced him to a total of 97 months (which was 50 months below the
guidelines range) to run concurrently with his state sentence. Accordingly,
Andrews is bound by the appeal waiver unless he wants his entire plea agreement
set aside. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002); United
States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (explaining that a “waiver of
appeal is valid, and must be enforced, unless the agreement in which it is contained
is annulled”). And counsel advises that Andrews does not seek this relief.
To the extent that counsel considers whether Andrews could challenge the
execution of his sentence, counsel is correct that the issue would be beyond the
scope of direct appeal. See Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000)
(explaining that challenges to duration of prisoner’s confinement must be brought
under 28 U.S.C. § 2241 after exhaustion of administrative remedies).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.