NONPRECEDENTIAL DISPOSITION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
Argued March 1, 2017
Decided May 30, 2017
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐1366
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 14‐CR‐30152‐NJR‐05
AKEELAN L.J. PAULETTE, Nancy J. Rosenstengel,
Defendant‐Appellant. Judge.
O R D E R
Akeelan Paulette was caught transporting cocaine on an Amtrak train for the
benefit of his uncle, Ayiko Paulette. 1 He was charged with conspiring to distribute
controlled substances in violation of 21 U.S.C. §§ 846 and 841(a)(1), and traveling
interstate in support of racketeering in violation of 18 U.S.C. § 1952. After the district
court refused to accept his untimely motion to suppress evidence, he pled guilty to both
charges. Paulette faced a presumptive statutory minimum of five years in prison because
of the drug quantity under 21 U.S.C. § 841(b)(1)(B), but he also qualified for an exception
to that minimum under the “safety valve” in 18 U.S.C. § 3553(f). He was sentenced to
1 Ayiko Paulette’s appeal, no. 16‐1099, is discussed in a separate opinion.
No. 16‐1366 Page 2
probation for five years—a lucky break, given that probation is prohibited by statute even
when the safety valve applies. See United States v. Thomas, 930 F.2d 526, 527–28 (7th Cir.
1991) (concluding that prohibitions against probation in § 841(b) remain even after
application of 18 U.S.C. § 3553(e)), overruled in part on unrelated ground by United States
v. Canoy, 38 F.3d 893, 906–07 (7th Cir. 1994); United States v. Green, 105 F.3d 1321, 1323–24
(9th Cir. 1997) (same as to § 3553(f)). The government did not appeal the sentence of
probation.
Paulette filed a notice of appeal, though. His appointed lawyer asserts that the
appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744
(1967). Paulette has not responded to our invitation to comment on counsel’s motion
pursuant to Circuit Rule 51(b). Counsel has submitted a brief that explains the nature of
the case and addresses issues that an appeal of this kind might be expected to involve.
Because counsel’s analysis appears to be thorough, we limit our review to the subjects
that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first considers a challenge to the district court’s rejection of Paulette’s
untimely motion to suppress. (Paulette specifically reserved the right to challenge this
ruling on appeal.) About a month before pretrial motions were due, Paulette’s lawyer
withdrew from the case and a new lawyer was appointed. The new lawyer moved to
continue the trial date, but she did not seek to extend the deadline for pretrial motions.
That deadline passed without action by Paulette’s lawyer.
Nearly five months after the deadline had passed, counsel asked for an extension
to file a motion to suppress. She explained that she was having “communication
problems” with Paulette but said he had told her he wanted to file a motion to suppress.
Counsel noted that she had been appointed late in the case and inherited “voluminous”
discovery. She asked the district court to accept her attached motion to suppress, which
argued that police had stopped Paulette illegally at the train station.
The district court denied the requested extension and struck the untimely motion,
finding that the lawyer had not shown good cause for missing the deadline. The court
explained that even though the lawyer had been appointed late in the case, she had three
weeks to ask for an extension but inexplicably waited until five months after the deadline
had passed. The court added that the motion was meritless anyway because, as the court
had detailed in denying the uncle’s motion to suppress, the agents had reasonable
suspicion for the investigatory detention. Paulette’s lawyer then filed a motion to
reconsider, asking the court simply to deny the motion to suppress on the merits. The
No. 16‐1366 Page 3
court denied that motion because Paulette’s lawyer still had not established good cause
for the delay.
We agree with appellate counsel that any challenge to the district court’s decision
would be frivolous. District courts have discretion whether to allow untimely motions to
suppress for good cause. See Fed. R. Crim. P. 12(b)(3)(C); United States v. Combs, 657 F.3d
565, 568 (7th Cir. 2011). Under these circumstances, where the new trial lawyer waited
months before seeking leave to file a late motion to suppress and offered no good reason
for the delay, there is no sign that the district court abused its discretion. See United States
v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (no good cause where new counsel never
requested extension).
Appellate counsel next evaluates a potential challenge on the merits of the motion
to suppress. But because trial counsel did not establish good cause and thus the motion
was not allowed, we could not consider the asserted ground for suppression, not even
for plain error. See United States v. Daniels, 803 F.3d 335, 351–52 (7th Cir. 2015); United
States v. Acox, 595 F.3d 729, 730–31 (7th Cir. 2010). Accordingly, the challenge would be
frivolous.
Finally, appellate counsel weighs and correctly rejects as frivolous a possible
attack on the validity of Paulette’s guilty plea, explaining that Paulette expressed some
interest in withdrawing the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). The district court
substantially complied with Rule 11 of the Federal Rules of Criminal Procedure. See
United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); United States v. Akinsola, 105 F.3d
331, 334 (7th Cir. 1997). The court discussed the nature of the charges and possible
penalties, the trial rights Paulette was giving up, and the role of the Sentencing Guidelines
along with the court’s discretion in applying them. Appellate counsel says that the district
court neglected to inform Paulette about any waiver of his right to appeal or to file a
collateral attack, see Fed. R. Crim. P. 11(b)(1)(N), but Paulette did not waive these rights
under the terms of his guilty plea.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.