In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3171
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ERTRAN M. W HEATON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:02–CR–110–TS—Theresa L. Springmann, Judge.
S UBMITTED M AY 26, 2010—D ECIDED JUNE 22, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. The defendant’s supervised
release was revoked because he admitted having
violated its terms by helping to distribute marijuana;
by way of sanction the judge ordered him to serve
36 months in prison. The defendant appealed. His
lawyer has filed an Anders brief in which he reviews the
grounds for an appeal and concludes convincingly that
2 No. 09-3171
all would be frivolous. See Anders v. California, 386 U.S.
738 (1967). Only one point in the brief warrants discussion.
The defendant admitted as we said that he had violated
the terms of his supervised release, and, as the Anders
brief explains, there can be no doubt that the admissions
were knowing and voluntary, so that any challenge to
them would be certain to fail. But we add that the defen-
dant could not prevail even if the admissions were not
shown to be knowing and voluntary. For he does not
ask to withdraw the admissions. He objects to the 36-
month prison term that the judge imposed but not to
the revocation of supervised release on the basis of the
admissions he made.
In United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.
2002), we held that the voluntariness of a guilty plea
is not a potential appealable issue that must be dis-
cussed in an Anders brief, unless the defendant wants to
withdraw the plea after being informed by his lawyer of
the risks of doing so. He cannot retain the plea while
challenging admissions on which it was based. He
cannot in other words have his cake (a plea that may
have resulted in a lighter sentence than if he had refused
to plead guilty and been convicted after a trial) and eat
it (withdraw admissions, made in the plea hearing, that
might undermine challenges he may now wish to make
to his conviction or sentence). We have not found any
other reported case that addresses the issue.
The logic of Knox extends to a case (also one of first
impression) in which the defendant does not challenge
the revocation of his supervised release. We hold there-
No. 09-3171 3
fore that he cannot be allowed to challenge admissions
that undergird that revocation. He can challenge them
and the revocation, but if he is content with the revoca-
tion (fearing the possible consequences of a new revoca-
tion hearing) he cannot challenge it indirectly by attacking
the admissions on which it was based.
Counsel’s motion to withdraw as counsel is granted
and the appeal dismissed.
6-22-10