United States of America v. Jimmy L. Nave , J R .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1536
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J IMMY L. N AVE , J R .,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 00-0084-CR-01-T/F—John D. Tinder, Judge.
____________
A RGUED A PRIL 8, 2002—D ECIDED S EPTEMBER 4, 2002
____________
Before B AUER , E ASTERBROOK , and W ILLIAMS , Circuit
Judges.
W ILLIAMS , Circuit Judge. Jimmy Nave pleaded guilty to
transporting stolen property across state lines after he
was arrested with money stolen from a credit union. He
was charged with the robbery and entered into a plea
agreement. His appeal challenges the plea agreement, but
since we find that the agreement’s appeal waiver provi-
sion is valid, we dismiss his appeal.
Jimmy Nave was pulled over in Nashville, Tennessee
for traffic violations on January 25, 2000. During a search
of his car, a bag was found in the trunk containing ap-
proximately $58,930 in U.S. currency, some of which was

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2 No. 01-1536
bound in straps from the Lampco Federal Credit Union
in Anderson, Indiana. Under the bag was a loaded 9 mil-
limeter pistol. Nave had $5,404 and a receipt for the
purchase of the car for $6,825 in cash on his person. In
addition, $41,850 in cash was found on one of his two pas-
sengers.
When asked, Nave denied having anything to do with
the Lampco FCU, which was robbed eleven days earlier
by two masked men with handguns. One of his passengers,
on the other hand, told police that he knew that Nave
and his brother Christopher were the robbers. Christopher
was arrested later and admitted to the robbery. Nave
was indicted by a grand jury for knowing transportation
of stolen currency, in violation of 18 U.S.C. §§ 2314 and 2.
Christopher was indicted that same day with armed
bank robbery and using a firearm during a crime of vio-
lence.
Represented by his current appellate counsel, Richard
Loiseau, Nave pleaded guilty without a written plea agree-
ment to interstate transportation of stolen currency. Elev-
en days later, Christopher pleaded guilty to robbery and
firearms charges and testified before a grand jury. After
hearing Christopher’s testimony, the grand jury returned
an indictment charging Nave with armed robbery in
violation of 18 U.S.C. §§ 2113(a) and (d), and 2, and with
using, carrying, and brandishing a firearm during a
crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii)
and 2.
Nave, represented by different counsel, agreed to plead
guilty to the charges in the second indictment. He was
sentenced to 57 months’ incarceration for the armed rob-
bery count, to be served concurrently with the 18 months
he was already serving for interstate transportation of
stolen currency. Consecutive to the 57 months, Nave
was sentenced to 84 months’ incarceration for the firearms

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No. 01-1536 3
count, for a total of 141 months. Neither Nave nor his
counsel objected to the sentence or to any of the court’s
findings.
On appeal, Nave alleges that the district court vio-
lated the Double Jeopardy Clause of the Fifth Amend-
ment by imposing multiple punishments for the same
offense. In addition, he claims that the district judge
erred when he set Nave’s sentence 30 months longer
than Christopher’s sentence, ostensibly for the same
conduct. We find that we do not have jurisdiction to ad-
dress these claims, since Nave waived his right to appeal
in his plea agreement.
In Paragraph 12 of the plea agreement, Nave agreed
to waive his right “to appeal the conviction and sen-
tence imposed in this case on any ground, including
the right to appeal conferred by [18 U.S.C. § 3742].” This
waiver was valid, according to the agreement, so long
as Nave received a sentence of 141 months or lower. Dur-
ing his plea hearing, Nave was asked by the court if he
understood the waiver provision of the plea agreement, to
which he assented. Nave also said that he was not threat-
ened, coerced, or induced to make the plea agreement
and/or plead guilty. At the conclusion of the hearing, the
court determined that Nave was intelligent enough to
understand the proceedings and that the plea was vol-
untary. Here, the court complied with Federal Rule of
Criminal Procedure 11, which governs guilty pleas, and
there is nothing to suggest that either this plea agree-
ment or Nave’s earlier plea (for interstate transporta-
tion of stolen currency) are invalid.
It is well-settled that defendants can waive constitu-
tional and statutory rights in plea agreements, see
United States v. Hare, 269 F.3d 859 (7th Cir. 2001);
United States v. Schmidt, 47 F.3d 188, 190 (7th Cir.
1995) (collecting cases). There is nothing wrong with such

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4 No. 01-1536
1 But see United States v. Whitlow, 287 F.3d 638, 641 (7th Cir.
2002) (D. Wood, J., concurring) (“I am also not convinced that
these waivers are capable of ‘buying’ such great benefits for
defendants who plead guilty as the majority assumes. In fact, the
scope of the issues that may properly be appealed after a guilty
plea is exceedingly narrow. . . .”).
a waiver, as we said in Hare, since by pleading guilty,
defendants “exchange jury trials for lower sentences—
and there is no reason why defendants cannot do the
same with rights to appeal.” 269 F.3d at 861.1 Though
we are not privy to the discussions or thinking of Nave
and his counsel when evaluating his plea agreement,
Nave ultimately decided to waive his right to appeal in
exchange for a maximum cap placed on his sentence—141
months.
In his appeal, Nave does not contest the existence of
the waiver provision in the plea agreement nor the valid-
ity of the agreement itself and has done nothing to con-
vince us why we should consider the merits of his ap-
peal in light of the waiver provision. What he does raise
is a frivolous double-jeopardy argument alleging that
his prosecution for armed bank robbery was barred due
to his first guilty plea to transporting stolen currency.
In addition to the general waiver of his right to appeal,
Nave has also ignored the Supreme Court’s holding in
United States v. Broce, 488 U.S. 563 (1989), which bars
him from making a double-jeopardy argument. By plead-
ing guilty to three counts, he has conceded to commit-
ting three separate offenses, waiving any double-jeopardy
challenge. See id., 488 U.S. at 570. In addition, the mer-
its of his claim clearly fail when the principles of Block-
burger v. United States, 284 U.S. 299 (1932), are applied.
Nave’s second argument is even more frivolous, claim-
ing that his sentence was improper solely because Chris-

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No. 01-1536 5
topher was given a less severe sentence for the same
conduct, ignoring the fact that Christopher cooperated
with the government investigation of the robbery. We need
not discuss Nave’s arguments any further because the
appeal waiver provision of his plea agreement controls, and
we dismiss his appeal for lack of jurisdiction.
There is, however, one additional matter that we ad-
dress, unrelated to the issues raised on appeal, which is
the appellate advocacy of Nave’s counsel. He requested
eight extensions of time in which to file his initial brief
to this Court, and several times we issued orders to
show cause why we should not take action for failure to
prosecute his appeal. Though one of the extensions of
time was to ostensibly correct typographical errors in the
brief, when the brief was finally filed, it had many errors,
including describing the second count of Nave’s indict-
ment as “court 2, under 18 U.S.C. § 924(c)(1)(A)(ii), for
using, carrying and rendering a firearm during and in
relation to a crime of evidence” (italics added).
As already described above, the merits of the appeal
presented are barely worth discussing, and we received
no substantive response, either in a reply brief or at oral
argument, to the government’s argument that this ap-
peal is barred by the plea agreement’s waiver provisions.
The poor quality of Nave’s counsel’s appearance be-
fore this court and his written submissions in this case
leave us at a loss. As we have said before, “[w]e do not
feel it is unreasonable to expect carefully drafted briefs
clearly articulating the issues and the precise citation of
relevant authority for the points in issue from profession-
als trained and educated in the law,” Jones v. Hamelman,
869 F.2d 1023, 1032 (7th Cir. 1989). However, we decide
in our discretion to not impose a fine, and hope that
an admonishment is sufficient to persuade Nave’s appel-
late counsel to be more diligent in the future.

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6 No. 01-1536
For the foregoing reasons, defendant’s appeal is
D ISMISSED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-4-02

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