United States of America v. Lisa Mack

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 20, 2012
Decided February 9, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10-2541
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISA MACK,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 08-CR-320
Lynn Adelman,
Judge.
O R D E R
Lisa Mack hired a gunman to kill her estranged husband after taking out a
life-insurance policy in his name, but authorities discovered the plot before it could be
carried out. She pleaded guilty to causing the gunman to travel interstate to commit
murder for hire and to possessing a firearm in furtherance of a crime of violence. 18 U.S.C.
§§ 1958(a), 924(c). The district judge sentenced Mack to 120 months’ imprisonment on the
first count (the statutory maximum and far below the applicable guidelines range of 235 to
293 months) and 60 months’ imprisonment on the second count (the statutory minimum
and guidelines term), to run consecutively, and a total of 3 years’ supervised release.
Despite having waived her right to appeal as part of a plea agreement, Mack brought this
appeal. Her newly appointed lawyer now seeks to withdraw because he believes an appeal
would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Mack opposes counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 10-2541 Page 2
motion. See CIR. R. 51(b). We confine our review to the potential issues identified in
counsel’s facially adequate brief and in Mack’s response. United States v. Schuh, 289 F.3d
968, 973–74 (7th Cir. 2002).
Counsel considers whether Mack could argue that her guilty plea is invalid, but
Mack has not contested the validity of the plea or in any way suggested she is willing to
forgo the benefits of her plea agreement (the government dismissed one count of the
indictment in exchange for the plea). See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir.
2002). Because Mack does not request that her guilty plea be set aside, and because an
appeal waiver stands or falls with the plea, the appeal waiver must stand. See United States
v. Quintero, 618 F.3d 746, 752 (7th Cir. 2010); Nunez v. United States, 546 F.3d 450, 454 (7th
Cir. 2008). This waiver forecloses Mack’s argument in her response that her guidelines
imprisonment range was miscalculated.
Mack’s appeal waiver excepts claims based on “(1) any punishment in excess of the
statutory maximum, (2) the sentencing court’s reliance on any constitutionally
impermissible factor, and (3) ineffective assistance of counsel.” Mack was not subjected to
any punishment exceeding an applicable statutory maximum, see 18 U.S.C. §§ 1958(a),
924(c)(1)(A)(i), 3583(b)(1), (2), and counsel has not identified any improper factors that the
court relied on in determining Mack’s sentence, see United States v. Hicks, 129 F.3d 376, 377
(7th Cir. 1997). Neither has counsel identified any basis for challenging the performance of
Mack’s lawyer in the district court, and, at all events, a claim of ineffective assistance is
more appropriately pursued in a collateral proceeding. Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Persfull, 660 F.3d 286, 299 (7th Cir. 2011).
Accordingly, we GRANT counsel’s motion to withdraw. The appeal is
DISMISSED.

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