United States of America v. Kevin J. McGruder

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1387
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN J. MCGRUDER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois
No. 03-CR-30148
David R. Herndon,
Judge.
O R D E R
Kevin McGruder was charged as part of a drug conspiracy. On the third day
of his trial he entered a guilty plea in accordance with an agreement that contained
a waiver of his right to appeal “any sentence within the maximum provided by the
statute(s) of conviction.” The district court sentenced him to 262 months’
imprisonment—a term within the statutory maximum of incarceration for life.
McGruder filed a timely notice of appeal on February 14. On March 1, before
briefing had commenced, the government moved to dismiss the appeal as frivolous
due to the appeal waiver. McGruder’s attorney, appointed for purposes of the
appeal, responded to the government’s motion by filing what we construe as a
memorandum in support of a motion to withdraw under Anders v. California, 386
U.S. 738 (1967). See United States v. Mason, 343 F.3d 893, 894 (7th Cir. 2003).
We informed McGruder of his right to respond to counsel’s submission, see Cir. R.
51(b), but he has not replied. We therefore confine our review to the potential
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1387 Page 2
issues counsel identifies in his facially adequate memorandum. See United States
v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Counsel first considers whether it would be frivolous to argue that McGruder
did not knowingly and voluntarily waive his right to appeal because the district
court did not comply with Federal Rule of Criminal Procedure 11 when taking his
guilty plea. Specifically, counsel points to the district court’s failure to mention
during the plea colloquy McGruder’s rights to testify on his own behalf and to be
represented by court-appointed counsel if needed. The issue is properly considered
because, in accordance with United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002), counsel has verified that McGruder now wishes to withdraw his plea. As
counsel recognizes, any voluntariness argument would be reviewed for plain error
because McGruder did not move to withdraw his guilty plea in the district court, see
United States v. Gibson, 356 F.3d 761, 765-66 (7th Cir. 2004). We agree that it
would be frivolous to contend that plain error lies in the district court’s omissions.
McGruder would have to demonstrate that he would not have pleaded guilty absent
the errors and also that there is some reason to believe that he should not have
been convicted. See United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001).
McGruder could not establish that he was prejudiced because he had already
testified on his own behalf at the time he pleaded guilty and had no use for
appointed counsel because he had retained an attorney. The district court
substantially complied with Rule 11, and thus it would be frivolous to challenge the
voluntariness of the guilty plea and the attendant appeal waiver.
Counsel next considers whether he could challenge McGruder’s sentence
based on United States v. Booker, 125 S. Ct. 738 (2005), an argument that would
require him to first to overcome the appeal waiver in the plea agreement. Counsel
concludes that such a challenge would be frivolous in light of our holding in United
States v. Bownes, 405 F.3d 634 (7th Cir. 2005), that appeal waivers will be strictly
enforced against appellants making Booker arguments unless the plea agreement
contains an “escape hatch.” We agree that Bownes squarely forecloses the
argument that Booker provides a basis for undoing an otherwise valid appeal
waiver. We also note that although counsel correctly identifies the waiver itself as
“prospective,” McGruder was sentenced after the Supreme Court’s decision in
Booker, so he did not in fact lose any benefit of a subsequent change in the law.
McGruder’s waiver allows no exception and thus we need not discuss the other
potential arguments counsel identifies regarding the guidelines calculations or the
reasonableness of the sentence.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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