United States v. Highshaw
Opinion of the Court
ORDER
Michael Highshaw pleaded guilty to a conspiracy involving 500 grams or more of crack and powder cocaine, 21 U.S.C. §§ 846, 841(a)(1), and to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He was then sentenced below the guidelines to 180 months’ imprisonment. Although the plea agreement included an appeal waiver, Highshaw filed a notice of appeal. His lawyer asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel submitted a brief that explains the nature of the case and addresses the issues that an appeal of this kind might be expected to involve. Highshaw declined our invitation to respond to counsel’s motion. See Cir. R. 51(b). Because counsel’s analysis appears to be thorough, we limit our review to the subjects that counsel has discussed. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Highshaw’s appellate lawyer also has evaluated the case for possible sentencing claims, but correctly concludes that any claim would be foreclosed by his appeal waiver (“[T]he defendant knowingly and voluntarily waives his right to appeal his sentence in this case .. ”). An appeal waiver stands or falls with the guilty plea, see United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), and counsel has not identified an exception that would apply here, see United States v. Adkins, 743 F.3d 176, 192-93 (7th Cir. 2014); United States v. Bournes, 405 F.3d 634, 637 (7th Cir. 2005). Counsel briefly considers whether the appeal waiver might be unenforceable on the ground that the district court made a confusing statement about the scope of the waiver at the change-of-plea hearing: “Whether or not [the appeal waiver is] effective or not is [a] subject for the court of appeals and for that reason this court doesn’t put a lot of stock in those waivers. But, in any event, it is part of the plea agreement.” But counsel correctly concludes that this comment could not be the basis for a non-frivolous challenge because the court said these words after Highshaw confirmed that he was waiving his right to appeal, and there is no indication that the court’s statements confused him. See United States v. Williams, 184 F.3d 666, 669 (7th Cir. 1999).
Reference
- Full Case Name
- United States v. Michael HIGHSHAW
- Status
- Published