United States of America v. Wali Ali

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 11, 2014
Decided April 11, 2014
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐3483
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
WALI ALI,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 10 CR 110‐1
Ronald A. Guzmán,
Judge.
O R D E R
Wali Ali pleaded guilty to two counts of bank robbery, see 18 U.S.C. § 2113(a),
and one count of brandishing a firearm during a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A). The district court sentenced him to 121 months’ imprisonment on each
bank robbery count, running concurrently, and 84 months’ imprisonment on the
firearm charge, running consecutively to the other counts. Counsel has submitted a
brief that is adequate on its face—meaning that it explains the nature of the case and
fully and intelligently discusses the issues that the type of case might be expected to
involve—and therefore we limit our review to the challenges to the district courtʹs
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13‐3483 Page 2
rulings that counsel has identified as possibly having some merit plus any additional
challenges to rulings that the defendant, disagreeing with counsel, believes have merit.
See United States v. Schuh, 289 F.3d 968, 973 (7th Cir. 2002); United States v. Wagner, 103
F.3d 551, 553 (7th Cir. 1996).
In 2010 Ali and two other men, armed with firearms and wearing bullet‐proof
vests, robbed a TCF Bank in Palos Heights, Illinois. While his co‐conspirators forced
employees to remain in the lobby, Ali collected more than $100,000 from the bank’s
vault. After police apprehended Ali, he confessed to committing four other bank
robberies between 2006 and 2010.
He pleaded guilty to one bank‐robbery count and one § 924(c)(1)(A) firearm
count related to the 2010 robbery, and another bank robbery count related to a 2007
robbery that also involved the use of guns. At sentencing the district court calculated a
guidelines range of 97 to 121 months for the bank robbery counts and sentenced Ali to
concurrent 121‐month sentences. The court sentenced him to the 84‐month statutory
minimum sentence on the firearm count, to run consecutively to his bank‐robbery
sentence, see 18 U.S.C. § 924(c)(1)(A).
In his motion to withdraw, counsel explains that Ali has not indicated whether
he wants to challenge his guilty plea but counsel properly concludes that any challenge
to the plea would be frivolous. The transcript of the plea colloquy shows that the district
court substantially complied with Federal Rule of Criminal Procedure 11. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The court confirmed the factual basis
for the plea, ensured that Ali’s plea was voluntary, and explained the maximum and
minimum penalties, the trial rights Ali would waive by pleading guilty, the role of the
sentencing guidelines, and the judge’s discretion in applying them. See FED . R. C RIM. P.
11(b). Although the court failed to discuss the forfeiture provision contained in the plea
agreement, see FED . R. C RIM. P. 11(b)(1)(J), this oversight is harmless because the district
court has not ordered a forfeiture. The government has since moved the district court
under Federal Rule of Criminal Procedure 36 to correct the judgment to reflect the
forfeiture, but even if the court grants the government’s request and orders forfeiture,
the omission in the plea colloquy is harmless error because it does not affect Ali’s
substantial rights. See FED . R. C RIM. P. 11(h). The plea agreement explicitly mentioned
the forfeiture, and Ali’s counsel confirmed at the plea hearing that he had reviewed the
plea agreement with Ali and that Ali understood the terms and conditions of the
agreement.

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No. 13‐3483 Page 3
Counsel next considers whether Ali could challenge his sentence but correctly
concludes that any argument would be frivolous. In his plea agreement Ali agreed to
the upward adjustments for use of a firearm in the 2007 robbery, see U.S.S.G.
§ 2B3.1(b)(2)(B), the monetary loss to financial institutions attributed to each robbery,
see id. § 2B3.1(b)(1), (b)(7), and the use of body armor in the 2010 robbery, see id.
§ 3B1.5(2)(B). Ali did not object to the court’s application of the sentencing guidelines,
and counsel is unable to identify any potential errors in the court’s calculations. His
within‐guidelines sentence is presumed reasonable, see United States v. Cheek, 740 F.3d
440, 455 (7th Cir. 2013). The court acknowledged a factor in mitigation pressed by
Ali—his advanced age (67 at the time of sentencing)—but concluded that a 121‐month
imprisonment term was necessary to reflect the serious nature of Ali’s bank‐robbery
offenses, see 18 U.S.C. § 3553(a)(1), punish Ali, see id. § 3553(a)(2)(A), deter him from
committing future offenses, see id. § 3553(a)(2)(B), and protect the public from future
criminal conduct, see id. § 3553(a)(2)(C).
In his Rule 51(b) response, Ali seems to identify himself as a sovereign citizen
and asserts that he is immune from prosecution. But this argument would be frivolous
to raise on appeal because we have repeatedly rejected theories that a defendant is
sovereign and beyond the jurisdiction of the courts. See United States v. Benabe, 654 F.3d
753, 767 (7th Cir. 2011) (collecting cases). Ali also implies in his Rule 51(b) response that
his charging document is inadequate because it is not supported by sworn affidavits.
This argument too would be frivolous because Ali waived his right to a formal
indictment during the plea colloquy. Moreover, “[a]ll non jurisdictional issues not
specifically preserved in the conditional plea agreement are waived.” See United States v.
Kingcade, 562 F.3d 794, 797 (7th Cir. 2009). An assertion that an indictment is not
supported by sufficient evidence does not affect the jurisdiction of the court, see United
States v. Cotton, 535 U.S. 625, 630–32 (2002), and so Ali’s argument is waived.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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