United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 21, 2005

Decided January 11, 2006

Before

 Hon. KENNETH F. RIPPLE, Circuit Judge

 Hon. DANIEL A. MANION, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

No. 04-3860

UNITED STATES OF AMERICA, Appeal from the United States District 

Plaintiff-Appellee, Court for the Southern District of Indiana, 

Indianapolis Division

v.

No. 01 CR 110

JOHN B. ABDALLA,

Defendant-Appellant. Larry J. McKinney,

Chief Judge

O R D E R

John Abdalla pleaded guilty to conspiracy to possess and distribute

pseudoephedrine, 21 U.S.C. §§ 846, 841(c)(2). Abdalla came to the attention of

authorities after a truck rented in his name was stopped for speeding and found to

contain 1.6 million pseudoephedrine pills. Abdalla cooperated in the government’s

investigation as a condition of his plea agreement, which also includes a waiver of any

right to appeal if his sentence of imprisonment imposed is within or below the guideline

range applicable to stipulations reached by the parties. Because of Abdalla’s substantial

cooperation with law enforcement authorities, the government asked the district court to

depart from the guidelines and impose a lesser sentence pursuant to § 5.K1.1 of the

Sentencing Guidelines. The district court agreed and sentenced Abdalla to 97 months’

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-3860 Page 2

imprisonment, well below the range of 168 to 210 months the parties originally

anticipated. The court also imposed three years of supervised release and a $100 special

assessment. Abdalla appeals despite his waiver, but his appointed attorney moves to

withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern

any nonfrivolous issue. We confine our review to the potential issues counsel identifies

and those proposed in Abdalla’s response filed pursuant to Circuit Rule 51(b). See

United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

The appeal waiver in Abdalla’s plea agreement was triggered when the district

court accepted the parties’ sentencing stipulation and imposed a sentence of

imprisonment below the resulting range. The waiver in this case is an unqualified

promise to forego challenging his conviction and sentence, either by direct appeal or

collateral attack, “on any ground.” An appeal waiver is enforceable if entered into

knowingly and voluntarily. United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.

2005). Thus, Abdalla simply cannot proceed with this appeal unless he can overcome his

waiver, and he cannot contest the waiver without challenging the entire plea agreement. 

See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). Counsel represents that

Abdalla does not want to revoke his guilty plea and, in the process, forego the benefits he

received under the plea agreement. See United States v. Knox, 287 F.3d 667, 670-71 (7th

Cir. 2002) (stating that withdrawing guilty plea may result in losing bargained-for

benefits in plea agreement). Accordingly, an attempt to invalidate the waiver would be

frivolous, see United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001). 

Abdalla states that he can argue on appeal that his attorney was ineffective by not

arguing for a safety-valve sentence reduction under 18 U.S.C. § 3553(f)(1)-(5). Although

an argument of ineffective negotiation of a plea waiver survives the waiver itself, Jones

v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998), Abdalla’s argument that he would

be eligible for the reduction is unsupported by the record. It furthermore appears that

Abdalla would be ineligible for the safety-valve reduction because he admits in the

presentence investigation report that he organized and supervised the drug conspiracy

(“I arranged to transport a large quantity of pseudoephedrine; I enlisted the help of my

friends. . . . I admitted the truck was mine.”). See 18 U.S.C. § 3553(f)(4). Because

Abdalla cannot show that he was prejudiced by counsel’s failure to argue for the safetyvalve reduction, see Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005), this

argument is frivolous. 

Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal.