United States of America v. Nathan Sherrod

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2008
Decided April 10, 2008
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3127
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NATHAN SHERROD,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 06‐CR‐205
Lynn Adelman,
Judge.
O R D E R
Nathan Sherrod pleaded guilty to conspiring to deliver 100 grams or more of heroin,
see 18 U.S.C. § 841(a)(1), and was sentenced to 78 months’ imprisonment. Sherrod directed
his appointed counsel to file a notice of appeal, but counsel now seeks to withdraw because
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 07‐3127 Page 2
he cannot discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738
(1967). Sherrod has not accepted our invitation to comment on counsel’s motion, see CIR. R.
51(b), and thus our review of the record is limited to the potential issues raised in counsel’s
facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002). After
reviewing counsel’s submission, we conclude that the appeal is frivolous, and accordingly
grant counsel’s motion to withdraw.
Counsel initially considers whether Sherrod could challenge the voluntariness of his
guilty plea or adequacy of his plea colloquy, yet he has not told us whether Sherrod in fact
wants his plea set aside, and Sherrod has not expressed his views in a Rule 51(b) response.
Cf. United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002). Counsel instead asserts that
the district court substantially complied with Federal Rule of Criminal Procedure 11 and
that he cannot find any deficiency in the colloquy that might undermine Sherrod’s guilty
plea on direct appeal even if Sherrod wanted the plea set aside. Although mostly correct,
counsel’s assertion ignores the district court’s failure to clearly inform Sherrod that the
government could use any of his statements in a prosecution for perjury. See FED. R. CRIM .
P. 11(b)(1)(A). Sherrod, however, was not harmed because the information was included in
his plea agreement, see United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001), and there is
no such current or prospective prosecution against him, see United States v. Graves, 98 F.3d
258, 259 (7th Cir. 1996). Thus, even if Sherrod wanted to withdraw his guilty plea, we agree
that any potential argument that Sherrod’s plea was involuntary would be frivolous.
Counsel next considers arguing that several pretrial motions should have been
granted by the district court, but determines that the issue is foreclosed by Sherrod’s guilty
plea. We agree. A defendant waives his right to appeal the denial of a pretrial motion by
pleading guilty. See, e.g., United States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998). Here,
Sherrod’s unconditional guilty plea waived any claim on appeal that his pretrial motions
should have been granted.
We also agree that any challenge to the reasonableness of Sherrod’s 78‐month prison
sentence, which was 6 months below the applicable guidelines’ range, would be frivolous.
We have, in fact, previously noted that it would be “hard to conceive of below‐range
sentences that would be unreasonably high.” United States v. George, 403 F.3d 470, 473 (7th
Cir. 2005). In this case, moreover, the district court gave meaningful consideration to both
the sentencing guidelines and factors under 18 U.S.C. § 3553(a). For instance, the court took
into account the seriousness of the offense, Sherrod’s criminal history, the supportive letters
written by Sherrod’s mother and girlfriend, and the need for deterrence. But because of
Sherrod’s health issues, the district court ultimately found that a 78‐month, below‐guideline
sentence was appropriate. Counsel cannot identify a convincing reason why Sherrod’s

-- 2 of 3 --

No. 07‐3127 Page 3
sentence is unreasonable, and thus we agree that it would be frivolous to pursue this challenge.
For the above reasons, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.

-- 3 of 3 --