NONPRECEDENTIAL DISPOSITION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 December 8, 2009
Decided December 9, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08‐3944
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 07 CR 50039
JULIAN L. WYRE,
Defendant‐Appellant. Philip G. Reinhard,
Judge.
O R D E R
Julian Wyre was charged with possession with intent to distribute crack cocaine. See
21 U.S.C. § 841(a)(1). He entered into a plea agreement in which he waived his rights to
appeal the conviction, his sentence, or the district court’s pretrial rulings unless they
resulted from ineffective assistance of counsel or consideration of constitutionally
impermissible factors. The district court sentenced him to 204 months’ imprisonment, and
Wyre appealed. His appointed counsel moves to withdraw because he cannot identify any
nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738 (1967). Wyre objects
to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues
No. 08‐3944 Page 2
identified in counsel’s facially adequate brief and Wyre’s response. See United States v.
Cano‐Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009); United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002).
Wyre has told counsel that he wants his guilty plea set aside, so counsel properly
begins by evaluating whether he could challenge the voluntariness of his guilty plea or the
adequacy of the plea colloquy. See FED R. CRIM. P. 11; United States v. Knox, 287 F.3d 667,
671‐72 (7th Cir. 2002). Because Wyre did not move to withdraw his guilty plea in the
district court, our review would be for plain error only. See United States v. Vonn, 535 U.S.
55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). Counsel identifies
only one omission during the plea colloquy: the district court did not tell Wyre that he could
present evidence at trial. See FED. R. CRIM. P. 11(b)(1)(E). But the judge did advise Wyre that
if he went to trial he could subpoena witnesses and testify in his own defense, and the plea
agreement further specified that, at trial, Wyre would be able to present witnesses and other
evidence. The judge’s failure to say more is not plain error. See United States v. Driver, 242
F.3d 767, 771 (7th Cir. 2001). We therefore agree with counsel that it would be frivolous to
argue that the plea colloquy was deficient.
Counsel in his brief, and Wyre in his 51(b) response, also propose arguing that the
plea was involuntary because Wyre’s attorney was ineffective. A challenge to the adequacy
of counsel’s performance, however, is best pursued on collateral review so that a more
complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003);
United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
Finally, counsel considers whether Wyre could challenge his sentence, and both
counsel and Wyre propose arguing that the district court erred by denying Wyre’s request
at sentencing to substitute counsel. Both of these arguments are foreclosed by the appeal
waiver. If the guilty plea stands, so does the waiver. United States v. Wilson, 481 F.3d 475,
483 (7th Cir. 2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir. 2002). Thus, any
challenge to Wyre’s sentence or the district court’s refusal to substitute counsel would also
be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.