NONPRECEDENTIAL DISPOSITION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 October 8, 2009
Decided October 13, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐4252
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 1:07‐CR‐10120‐001
CHARLES F. RUTHERFORD, Joe Billy McDade,
Defendant‐Appellant. Judge.
O R D E R
Charles Rutherford pleaded guilty to possession of crack with intent to distribute.
See 21 U.S.C. § 841(a)(1). Because of the amount of crack and his prior drug conviction, he
faced a minimum of 10 years imprisonment. See id. at § 841(b)(1)(B). In the plea agreement
Rutherford waived his right to challenge the conviction or sentence on direct appeal or in a
postconviction proceeding, and also promised to cooperate with authorities. In exchange
the government agreed to consider moving for a prison term below the guidelines range
and, possibly, the statutory minimum. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Rutherford
later moved to withdraw his guilty plea when he learned that the government might not
move for a sentence below the mandatory minimum. The district court denied Rutherford’s
motion and, after the government moved for a term below the guidelines range but not
No. 08‐4252 Page 2
below the statutory minimum, sentenced him to 10 years. Rutherford filed a notice of
appeal, but his appointed counsel requests permission to withdraw because he does not
believe there is a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Rutherford objects to counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s supporting brief and Rutherford’s response. See
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Rutherford wants his guilty plea set aside, so counsel evaluates whether Rutherford
could challenge the plea colloquy based on the district court’s failure to advise him in open
court that he had a right at trial to confront adverse witnesses. See FED. R. CRIM. P.
11(b)(1)(E). Counsel correctly observes that, despite this omission, the district court
substantially complied with Rule 11 during Rutherford’s change‐of‐plea hearing. United
States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995). Moreover, Rutherford’s written plea
agreement, which he acknowledged having read and understood, advised him of his right
to confront adverse witnesses. The omission was therefore harmless. See United States v.
Driver, 242 F.3d 767, 769 (7th Cir. 2001).
Rutherford also wishes to challenge the district court’s denial of his motion to
withdraw his guilty plea. That motion asserts that Rutherford would not have pleaded
guilty had he known that the government was not required to move for a sentence below
the mandatory minimum. In denying the motion, the district court concluded that
Rutherford had understood the government’s discretion at sentencing, and we agree with
counsel that the record supports the court’s conclusion. At Rutherford’s Rule 11 hearing,
the court went out of its way to emphasize that the government is not required to make a
motion. The court explained that even if he cooperates, the government may decide not to
recommend a sentence below the statutory minimum. Rutherford acknowledged that he
understood.
Next, counsel considers whether Rutherford could challenge the validity of his
appeal waiver. The waiver precludes Rutherford from challenging “any and all issues
relating to this plea agreement and conviction and to the sentence . . . on any ground.”
Where, as here, the underlying guilty plea is valid, we will enforce the appeal waiver. See
United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001); United States v. Feichtinger, 105 F.3d
1188, 1190 (7th Cir. 1997). The validity of Rutherford’s waiver also forecloses the other
challenges counsel considers concerning the reasonableness of the sentence and the
effectiveness of counsel.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.