# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 18 , 2016

Decided March 18 , 2016

Before

WILLIAM J. BAUER
, Circuit Judge

FRANK H. EASTERBROOK
, Circuit Judge

DAVID F. HAMILTON
, Circuit Judge

No. 15

- 2188

UNITED STATES OF AMERICA
, Plaintiff

- Appellee
,

v

.

MICHAEL NASH
, Defendant

- Appellant

. Appeal from the United States District Court for the Northern District of Indiana
, Hammond Division.

No. 2:13CR56

- 001

Philip P. Simon
, Chief Judge

.

O R D E R

Michael Nash pleaded guilty to a conspiracy to defraud the United States, 18 U.S.C. § 286, and aggra vated identity theft, id. § § 2, 1028A (a)(1) , after he used others’ personal information to file false tax returns with the IRS and collect the resulting refunds. Nash was sentenced to 48 months’ imprisonment for the conspiracy to defraud and a consecu tive 24 months’ imprisonment for the identity theft

. Despite an appeal waiver, Nash appealed. His lawyer asserts that the appeal is frivolous and seeks to wit hdraw. See Anders v. California
, 386 U.S. 738, 744 (1967). Counsel has submitted a brief that expl ains the nature of the case and addresses the issues that an appeal of this kind might be expe cted to involve; Nash declined to respond to counsel’s motion
, NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 15

- 2188 Page 2

s ee C IR

. R

. 51(b) . Because counsel’s analysis appears to be thorough, we limit our review to the su bjects that counsel discusses. 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).

Counsel informs us that Nash “may wish to challenge his plea,” so counsel first considers whether Nash could argue that his plea was not valid. See United States v. Konczak , 683 F.3d 348, 349 (7th Cir. 2012) ; United States v. Knox , 287 F.3d 667, 6 70

– 71 (7th Cir. 2002)

. Before sentencing, Nash had moved to withdraw his guilty plea, asserting that it “wa s not freely and voluntarily given” and that he wa s innocent . B ut new counsel later was appointed for Nash, and he withdrew the motion

. We agree with counsel that any challenge to the validity of Nash’s plea would be frivolous. First, Nash waived any chall enge to the knowingness and voluntariness of his guilty plea when he withdrew his motion making that very challenge

. See United States v. Tichenor , 683 F.3d 358, 363 (7th Cir. 2012) (“[ W ] ithdrawal of an objection generally results in a wai ver of that argument on appeal.” (quotation marks omitted)); Williams v. United States , 343 F.3d 927, 928 (8th Cir. 2003) ( claim in defendant’ s 28 U.S.C. § 2255 motion waived because it replicated claim in his withdrawn plea

- withdrawal motion). And even if the argumen t were not waived
, the district court ensured that Nash’s plea was knowing and voluntary by complying with Fed eral Rule of Criminal Procedure 11 in the plea colloquy : the court advised Nash that he was under oath and could be separately charged with perjur y; addressed the nature of the charges against him , the statutory maximum and minimum penalties, the trial rights he was forgoing, and the role of the sentencing guidelines; and explained the consequences of the appeal waiver

. See F ED

. R. C RIM

. P. 11(b); United States v. Blalock , 321 F.3d 686, 688

– 89 (7th Cir. 2003) ; United States v. Akinsola , 1 05 F.3d 331, 334 (7th Cir. 1997)

.
It follows, says counsel, that the entire appeal is frivolous . We agree . A n appeal waiver stands or falls with the guilty plea

. S ee Unit ed States v. Zitt , 714 F.3d 511, 515 (7th Cir. 2013) ; United States v. Sakellarion , 64 9 F.3d 634, 639 (7th Cir. 2011). B ecause Nash’s guilty plea was valid, we must enforce his waiver. The district court did not rely on any impermissible factors in sentencing, and Nash’s sentences do not exceed the statutory maximums for his crimes

. See Dowell v. United States , 694 F.3d 898, 901

– 02 (7th Cir. 2012) ; United States v. Bownes , 405 F.3d 634, 637 (7th Cir. 2005). Moreover , as counsel correctly points out
, any challenge to Nash’s condit ions of supervised release is also foreclosed by the waiver. See United States v. Campbell , No. 15

- 1188, 2016 WL 685119,
at *2 (7th Cir. Feb. 19, 2016) . If problems later arise with these conditions , Nash may seek modification under 18 U.S.C. § 3583(e)(2). See Campbell , 2016 WL 685119, at * 3; United States v. Neal , 810 F.3d 512, 514 (7th Cir. 2016)

.No. 15

- 2188 Page 3

Finally, counsel tells us that Nash has voiced “dissatisfaction with his attorney’s performance in counseling him to enter into the plea.” B ut counsel properly recognizes that claims of ineffective assistance are best raised in a collateral proceeding wher e an evidentiary foundation can be developed

. See Massaro v. United States , 538 U.S. 500, 504

– 05 (2003) ; United States v. Flores , 739 F.3d 337, 34 0

– 4 1 (7th Cir. 2014 )

.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.