NONPRECEDENTIAL DISPOSITION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 August 29, 2013
Decided September 5, 2013
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3319
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 1:11‐CR‐79‐TLS‐RBC‐1
JAMES K. RAY,
Defendant‐Appellant. Theresa L. Springmann,
Judge.
O R D E R
While executing a search warrant at James Ray’s home, police discovered 11
firearms in his bedroom and marijuana growing in the basement. That same day police
stopped Ray for a traffic violation and found a loaded pistol in his back pocket. Ray was
charged with possessing a firearm as a convicted felon, see 18 U.S.C. § 922(g)(1), and
maintaining a residence to manufacture a controlled substance, see 21 U.S.C. § 856(a)(1).
He pleaded guilty to the gun violation as part of a written plea agreement that would
bind the district court to a within‐guidelines sentence of 94 months’ imprisonment, see
2
No. 12‐3319
FED. R. CRIM. P. 11(c)(1)(C), and require Ray to waive his right to appeal. The district
court accepted the plea agreement and imposed the negotiated sentence.
Ray nevertheless filed a notice of appeal. His appointed lawyer believes that the
appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744
(1967). Ray has not responded to counsel’s motion, see CIR. R. 51(b), and we confine our
review to the matters discussed in counsel’s facially adequate brief, see United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel advises us that Ray does not want his guilty plea set aside, so counsel
properly omits discussion about the adequacy of the plea colloquy or the voluntariness
of the plea. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002). It follows, says
counsel, that Ray’s appeal waiver makes this case frivolous. We agree. Because an
appeal waiver stands or falls with the guilty plea, United States v. Zitt, 714 F.3d 511, 515
(7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011); United States
v. Cole, 569 F.3d 774, 776 (7th Cir. 2009), we must enforce Ray’s appeal waiver.
Moreover, although the appeal waiver in Ray’s plea agreement does not affect
our jurisdiction, see Latham v. United States, 527 F.3d 651, 563, (7th Cir. 2008); United
States v. Mason, 343 F.3d 893, 893 (7th Cir. 2003), a different portion of that agreement
does: A defendant who agrees to a specific sentence cannot appeal that sentence unless
the guilty plea was involuntary, the sentence was imposed in violation of the law, or the
sentence is greater than the one he bargained for. See 18 U.S.C. § 3742(a)(1), (c)(1); United
States v. Gibson, 490 F.3d 604, 607 (7th Cir. 2007); United States v. Cieslowski, 410 F.3d 353,
363–64 (7th Cir. 2005). But Ray does not want his guilty plea set aside, and he received
the agreed upon sentence, which is below the 10‐year statutory maximum, see 18 U.S.C.
924(a)(2).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.