United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted March 9, 2021 

Decided March 9, 2021, 

Before 

JOEL M. FLAUM, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 20-1529 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

 

v. 

ROBERT D. JENKINS 

Defendant-Appellant. 

 Appeal from the United States District 

Court for the Southern District of Indiana, 

New Albany Division. 

No. 4:15-cr-00016-SEB-VTW-1 

Sarah Evans Barker, 

Judge. 

O R D E R 

 Robert Jenkins pleaded guilty to producing child pornography, 18 U.S.C. 

§ 2251(a), and received a sentence of 336 months’ imprisonment and 10 years of 

supervised release. Because he expressly waived his right to appeal in his plea 

agreement, his trial counsel declined to file a notice of appeal. Jenkins later attacked his 

conviction and sentence under 18 U.S.C. § 2255, arguing (among other things) that his 

counsel was ineffective for refusing to file a notice of appeal. After the Supreme Court’s 

intervening decision in Garza v. Idaho, 139 S. Ct. 739 (2019) validated that argument, we 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 20-1529 Page 2 

remanded, and the district court reentered judgment to allow for a timely direct appeal. 

See Order, Jenkins v. United States, No. 18-3083 (7th Cir. Dec. 16, 2019). 

Jenkins now appeals, but his appointed counsel asserts that the appeal is 

frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 746 (1967). 

Jenkins filed a response under Circuit Rule 51(b) opposing counsel’s motion. Counsel’s 

brief explains the nature of the case and addresses the issues that an appeal of this kind 

might be expected to involve. Because the analysis appears thorough, we limit our 

review to the subjects counsel discusses and the issues Jenkins raises in response. 

See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

Counsel first considers whether Jenkins could challenge his conviction and 

rightly concludes that such a challenge would be futile. Jenkins’s plea agreement 

included a broad waiver of his appellate rights, including the right to appeal his 

conviction “on any ground.” An appeal waiver “stands or falls” with the underlying 

guilty plea. United States v. Gonzalez, 765 F.3d 732, 741 (7th Cir. 2014). Unless there is 

reason to doubt the validity of Jenkins’s plea, his waiver is enforceable. See id. Counsel 

does not directly say whether Jenkins wishes to challenge his guilty plea. 

See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,

287 F.3d 667, 670–71 (7th Cir. 2002). Jenkins’s response makes it clear that he does. 

However, because he did not move to withdraw his plea in the district court, we would 

review challenges to its validity only for plain error. See United States v. Schaul, 962 F.3d 

917, 921 (7th Cir. 2020). 

The record shows that it would be frivolous to argue that the district court 

plainly erred in accepting Jenkins’s guilty plea. A guilty plea is knowing and voluntary 

if the district court conducts a plea colloquy that complies with Federal Rule of 

Criminal Procedure 11(b), “requiring the court—prior to accepting a guilty plea—to 

address the defendant, inform him of his rights, determine that there is a factual basis 

for the plea, and determine that the plea is voluntary.” United States v. Barr, 960 F.3d 

906, 917 (7th Cir. 2020). As counsel explains, the district court substantially complied 

with Rule 11 during the change-of-plea hearing and ensured that Jenkins understood 

the appeal waiver. See Gonzalez, 765 F.3d at 741. The court confirmed that Jenkins read 

and understood his plea agreement, which laid out in detail the rights he was forsaking, 

the consequences of pleading guilty, and the scope of the appeal waiver. Based on this 

record, any challenge to the validity of the plea and its attendant waivers would be 

frivolous. 
No. 20-1529 Page 3 

Next, counsel considers whether Jenkins could appeal his sentence and correctly 

concludes that any challenge to Jenkins’s within-guidelines sentence would be 

precluded by his appeal waiver. Jenkins waived the right to appeal any sentence 

“within the advisory guideline range determined by the Court, regardless of the 

defendant’s criminal history category or how the sentence is calculated by the court.” 

Counsel concludes that there is no reason not to enforce that waiver. We recognize only 

a few narrow exceptions to the enforcement of appeal waivers for sentences. United 

States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). Jenkins’s sentence does not exceed 

the statutory maximum (30 years’ imprisonment and lifetime supervised release), and 

the sentencing transcript counsel has now provided confirms that it was not based on a 

constitutionally impermissible factor (such as race), so counsel rightly declines to argue 

that the appeal waiver is unenforceable. See id. 

Jenkins, however, insists that we should allow him to challenge his sentence 

because a miscarriage of justice would result if the purported errors in calculating his 

guidelines range are not corrected. But Jenkins explicitly waived the right to appeal his 

sentence, “regardless of ... how the sentence is calculated by the court.” There is no 

exception to enforcing appellate waivers that would allow us to consider his challenge 

to the guidelines calculations. See id. 

Finally, counsel explores whether Jenkins could raise a nonfrivolous argument 

that he was denied the effective assistance of counsel—an argument specifically 

exempted from the appeal waiver. Jenkins argued in a previous motion under 28 U.S.C. 

§ 2255 that his trial counsel was ineffective for “failing to permit him to go to trial,” 

“denying his right to go to trial,” and “manipulating him to discount any desire to go to 

trial by saying [he] would lose.” He presses this argument in his response and implies 

that his plea was not knowingly made because he received bad legal advice. 

But, as counsel observes, nothing in the existing record supports Jenkins’s 

assertion that trial counsel was ineffective. (Declining to file a notice of appeal because 

of an appeal waiver was not categorically deficient at the time, and no other potential 

deficiency can be gleaned from the record.) A claim that trial counsel was ineffective 

would require evidence outside of the record, such as Jenkins’s testimony about the 

advice he received from trial counsel. We cannot consider new evidence on appeal that 

is not part of the district court’s record. United States v. McDonald, 981 F.3d 579, 581 (7th 

Cir. 2020). Therefore, counsel appropriately concludes that it would be frivolous to raise 

the argument on direct appeal. See Massaro v. United States, 538 U.S; see also Fed. R. App. 

P. 10(a). 500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020) (“[W]e 
No. 20-1529 Page 4 

have repeatedly warned defendants against bringing ineffective-assistance claims on 

direct appeal.”). 

Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.