United States of America v. Mario L. Kaiser

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2007
Decided February 15, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3027
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO L. KAISER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 05-CR-30008-01-WDS
William D. Stiehl,
Judge.
O R D E R
After he held up a bank in Alton, Illinois, Mario Kaiser pleaded guilty to
bank robbery. See 18 U.S.C. § 2113(a). His written plea agreement includes a
waiver of the right to appeal his conviction or sentence except that Kaiser reserved
the right to challenge as unreasonable any term of imprisonment above the
guidelines range calculated by the district court. The court calculated a guidelines
imprisonment range of 168 to 210 months after concluding that Kaiser is a career
offender, see U.S.S.G. § 4B1.1, and sentenced him to 168 months. Kaiser
nevertheless insisted that the clerk of court file a notice of appeal on his behalf, see
Fed. R. Crim. P. 32(j)(2), but the government promptly moved to dismiss based on
the appeal waiver. Kaiser’s appointed counsel responded to the government’s
motion by moving to withdraw under Anders v. California, 386 U.S. 738 (1967),
stating that he can not discern any nonfrivolous arguments to pursue. Kaiser filed
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-3027 Page 2
a response opposing his attorney’s submission, see Cir. R. 51(b), and has moved for
the appointment of new counsel. Our review is limited to the potential issues
identified in counsel’s facially adequate brief and in Kaiser’s response. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers arguing that Kaiser’s guilty plea was not knowing and
voluntary. But counsel informs us that Kaiser does not wish to have his guilty plea
set aside, so counsel properly does not explore potential challenges to the plea. See
United States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002). And because the
appeal waiver stands or falls with the guilty plea, Kaiser is necessarily bound by his
appeal waiver. See United States v. Lockwood, 416 F.3d 604, 607 (7th Cir. 2005);
United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). Because Kaiser’s
prison sentence falls within the guidelines range as calculated by the district court,
counsel correctly concludes that the appeal waiver renders frivolous any other
challenge to the sentence imposed.
In his response, Kaiser asserts that his trial counsel was ineffective for not
explaining the plea agreement to him and leading him to believe that the
agreement reserved his right to argue that he should not have been sentenced as a
career offender. Kaiser’s assertion contradicts his statement in the plea agreement
that he was fully satisfied with the representation he received from his trial
counsel. In any event, ineffective assistance of counsel arguments are better saved
for collateral proceedings under 28 U.S.C. § 2255 where the record can be fully
developed. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States
v. Spence, 450 F.3d 691, 694 (7th Cir. 2006).
Accordingly, we GRANT counsel’s motion to withdraw, DENY Kaiser’s
motion to appoint substitute counsel, and DISMISS the appeal.

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