United States of America v. Tommie L. Johnson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006
Decided February 1, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-2341
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMIE L. JOHNSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division
No. 2:04 CR 59-01
Rudy Lozano,
Judge.
O R D E R
Tommie Johnson pleaded guilty in accordance with a plea agreement to one
count of dealing at least five grams of crack, see 21 U.S.C. 841(a)(1), and was
sentenced to 108 months’ imprisonment. In the plea agreement, Johnson recites
that “I expressly waive my right to appeal or to contest my conviction and my
sentence or the manner in which my conviction or sentence was determined or
imposed, to any Court on any ground” other than ineffective assistance of counsel
relating to the waiver. Johnson filed a notice of appeal, but his appointed counsel
perceives only frivolous arguments and therefore moves to withdraw under Anders
v. California, 386 U.S. 738 (1967). We have given Johnson the opportunity to
respond to counsel’s motion, see Cir. R. 51(b), but he has chosen not to, and so we
limit our review to the potential issues counsel identifies in his facially adequate
brief. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2341 Page 2
Counsel informs us that Johnson does not want his guilty plea set aside, so it
is appropriate that counsel refrains from discussing potential challenges to the
conviction and sentence. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.
2002).
Review is generally foreclosed unless Johnson could successfully challenge
the appeal waiver's validity, which he does not seek to do. See United States v.
Lockwood, 416 F.3d 604, 607 (7th Cir. 2005); United State v. Whitlow, 287 F.3d 638,
640 (7th Cir. 2002); United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001).
Since Johnson still wants to keep the benefit of the government's concessions in the
plea agreement, any attempt to escape the appeal waiver would be frivolous. See
Lockwood, 416 F.3d at 607 (stating that Rule 11 does not permit piecemeal rejection
of plea agreement provisions); Hare, 269 F.3d at 861 (stating that “a waiver of
appeal is valid, and must be enforced, unless the agreement in which it is contained
is annulled”).
Counsel also assesses whether to argue the only claim left open by the appeal
waiver—ineffective assistance of counsel in negotiating the waiver itself. But this
too is unavailable given Johnson’s unwillingness to withdraw his plea, see Knox, 287
F.3d at 671-72, and in any event would be more appropriately considered on
collateral rather than direct review, see Galbraith v. United States, 313 F.3d 1001,
1007-08 (7th Cir. 2002).
Counsel's motion to withdraw is GRANTED, and this appeal is DISMISSED.

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