United States of America v. Cedric Pearson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 13, 2008
Decided November 17, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1222
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CEDRIC PEARSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:06‐CR‐00130‐RM
Robert L. Miller, Jr.,
Chief Judge.
O R D E R
Cedric Pearson pleaded guilty to possessing firearms as a felon, see 18 U.S.C.
§ 922(g)(1), and was sentenced to 57 months’ imprisonment. In the plea agreement Pearson
waived his right to appeal on any ground his conviction or sentence, or the manner in
which the conviction or sentence was determined. Pearson filed a notice of appeal, but the
government filed a motion to dismiss the appeal based on the appeal waiver. See Roberts v.
United States, 429 F.3d 723 (7th Cir. 2005). Pearson refused to consent to a voluntary
dismissal, and so counsel filed a brief under Anders v. California, 386 U.S. 738 (1967),
requesting permission to withdraw from the case because he can find no nonfrivolous issue
for appeal. See United States v. Mason, 343 F.3d 893 (7th Cir. 2003). Pearson responded to his
lawyer’s brief, see CIR. R. 51(b), and so we confine our review to the issues raised in
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1222 Page 2
counsel’s facially adequate brief and Pearson’s response, see United States v. Schuh, 289 F.3d
968, 973‐74 (7th Cir. 2002).
Because Pearson made a broad waiver of his appellate rights, he cannot challenge his
sentence unless the plea agreement containing the waiver is invalid. See United States v.
Hare, 269 F.3d 859, 860 (7th Cir. 2001). But Pearson does not suggest that he seeks to set
aside his plea, and so we will not evaluate questions about the plea itself. See United States
v. Knox, 287 F.3d 667, 671 (7th Cir. 2001). Thus, the appeal waiver stands with the plea. See
Nunez v. United States, 495 F.3d 544, 545‐46 (7th Cir. 2007). We agree with counsel that any
challenge to Pearson’s sentence would be frivolous. Although Pearson now wants to take
advantage of a favorable change in law, he cannot evade the consequences of his appeal
waiver. See United States v. Lockwood, 416 F.3d 604 (7th Cir. 2005); United States v. Bownes,
405 F.3d 634, 636 (7th Cir. 2005); see also Brady v. United States, 397 U.S. 742, 756‐57 (1970).
Pearson’s response suggests that he may want to assert a claim of ineffective
assistance of counsel during the plea negotiation—a claim that his appeal waiver would
allow. But claims of ineffective assistance are better left for proceedings under 28 U.S.C.
§ 2255 where a more complete record can be made. See Massaro v. United States, 538 U.S.
500, 504‐05 (2003); United States v. Harris, 394 F.3d 543, 557 (7th Cir. 2005).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.

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