United States of America v. Johneak Johnson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2010
Decided May 26, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-1679
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNEAK JOHNSON
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
06 CR 324-23
Samuel Der-Yeghiayan,
Judge.
O R D E R
Johneak Johnson pleaded guilty to possessing with intent to distribute 3.2 grams of
crack cocaine, see 21 U.S.C. § 841(a)(1), and the district court sentenced him below the
applicable sentencing guidelines range to 136 months’ imprisonment. As part of a plea
agreement, the government dismissed a separate count of conspiracy and an allegation of
forfeiture, and Johnson waived his right to appeal his conviction and sentence. Johnson
filed a notice of appeal anyway, and his appointed counsel now moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because she has concluded that any argument
would be frivolous in light of the appeal waiver. Johnson has not responded to counsel’s
motion. See CIR. R. 51(b). Our review is limited to the potential issues identified by counsel
in her facially adequate brief. See United States v. King, 506 F.3d 532, 534 (7th Cir. 2007).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 2 --

No. 09-1679 Page 2
Johnson does not want his guilty plea set aside, so counsel correctly refrains from
discussing the voluntariness of the plea or the adequacy of the plea agreement. See United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel does consider whether Johnson could challenge his sentence, but deems
any such argument precluded by the broad appeal waiver included in his plea agreement.
That agreement provides that Johnson “knowingly waives the right to appeal . . . any part
of the sentence (or the manner in which that sentence was determined).” Because the
appeal waiver stands or falls with the plea agreement, counsel properly concludes that any
potential challenge to Johnson’s sentence would be frivolous. See Nunez v. United States, 546
F.3d 450, 453 (7th Cir. 2008); United States v. Wilson, 481 F.3d 475, 483 (7th Cir. 2007).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 2 of 2 --