# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 30, 2010

Decided November 30, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 10

‐ 2148

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

ARTHUR C. MADGETT,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:09

‐ CR

‐ 30006

‐ 001

‐ MJR

Michael J. Reagan,

Judge

.

O R D E R

Arthur Madgett pleaded guilty to two counts of possession of cocaine with intent to

distribute. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). The plea agreement contained a broad

appellate waiver under which Madgett agreed to waive all appellate rights, including the

right to contest his conviction and sentence (unless the sentence exceeded the guidelines

range as determined by the court). The plea agreement reflected the parties’ estimation that

Madgett would have an offense level of 23 and a criminal history category of V, with an

effective advisory guidelines range of 120 months’ imprisonment due to the statutory

minimum ten

‐ year sentence. The plea agreement, however, did not anticipate that Madgett

would qualify as a career offender. After further proceedings, in which Madgett objected to

this classification and considered withdrawing his plea, the district court sentenced him to

235 months’ imprisonment, slightly lower than the calculated range of 262 to 327 months. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2148 Page 2

Despite his waiver of appellate rights, Madgett appeals, and his appointed attorney has

concluded that the appeal is frivolous and moves to withdraw under Anders v. California

,

386 U.S. 738 (1967). Madgett did not respond to counsel’s submission. See C IR

. R. 51(b). We

review only the potential issues identified in counsel’s facially adequate brief. See United

States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

Counsel first considers whether Madgett could challenge the plea based on the

parties’ “mutual” mistake regarding his being sentenced as a career offender. But Madgett

has given no indication that he wants to discard his guilty plea and lose the benefit of

avoiding a possible maximum life sentence (as set forth in the plea agreement). See United

States v. Knox

, 287 F.3d 667, 671

‐ 72 (7th Cir. 2002). An appeal waiver stands or falls with the

plea agreement, United States v. Quintero

, 618 F.3d 746, 752 (7th Cir. 2010); Nunez v. United

States

, 546 F.3d 450, 454 (7th Cir. 2008), and because Madgett does not contest the validity of

his plea, the appeal waiver must stand. Accordingly, we agree with counsel that any such

argument on appeal would be frivolous.

Counsel also considers arguing that trial counsel was ineffective in failing to

anticipate, at the time Madgett pleaded guilty, that he would qualify as a career offender.

But this too is unavailable because Madgett hasn’t expressed that he wants his guilty plea

set aside. See Knox

, 287 F.3d at 671

‐ 72.

We G RANT counsel’s motion to withdraw and D ISMISS the appeal.