United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 8, 2009

Decided December 9, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD D. CUDAHY, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 08‐3944

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JULIAN L. WYRE,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Western Division.

No. 07 CR 50039

Philip G. Reinhard,

Judge.

O R D E R

Julian Wyre was charged with possession with intent to distribute crack cocaine.   See

21 U.S.C. § 841(a)(1).  He entered into a plea agreement in which he waived his rights to

appeal the conviction, his sentence, or the district court’s pretrial rulings unless they

resulted from ineffective assistance of counsel or consideration of constitutionally

impermissible factors.  The district court sentenced him to 204 months’ imprisonment, and

Wyre appealed.  His appointed counsel moves to withdraw because he cannot identify any

nonfrivolous argument to pursue.  See Anders v. California, 386 U.S. 738 (1967).  Wyre objects

to counsel’s motion.  See CIR. R. 51(b).  We confine our review to the potential issues

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 08‐3944 Page 2

identified in counsel’s facially adequate brief and Wyre’s response. See United States v.

Cano‐Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009); United States v. Schuh, 289 F.3d 968, 973‐74

(7th Cir. 2002).

Wyre has told counsel that he wants his guilty plea set aside, so counsel properly

begins by evaluating whether he could challenge the voluntariness of his guilty plea or the

adequacy of the plea colloquy.  See FED R. CRIM. P. 11; United States v. Knox, 287 F.3d 667,

671‐72 (7th Cir. 2002).  Because Wyre did not move to withdraw his guilty plea in the

district court, our review would be for plain error only.  See United States v. Vonn, 535 U.S.

55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008).  Counsel identifies

only one omission during the plea colloquy: the district court did not tell Wyre that he could

present evidence at trial.  See FED. R. CRIM. P. 11(b)(1)(E).  But the judge did advise Wyre that

if he went to trial he could subpoena witnesses and testify in his own defense, and the plea

agreement further specified that, at trial, Wyre would be able to present witnesses and other

evidence.  The judge’s failure to say more is not plain error.  See United States v. Driver, 242

F.3d 767, 771 (7th Cir. 2001).  We therefore agree with counsel that it would be frivolous to

argue that the plea colloquy was deficient.

Counsel in his brief, and Wyre in his 51(b) response, also propose arguing that the

plea was involuntary because Wyre’s attorney was ineffective.  A challenge to the adequacy

of counsel’s performance, however, is best pursued on collateral review so that a more

complete record can be developed.  See Massaro v. United States, 538 U.S. 500, 504‐05 (2003);

United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).

Finally, counsel considers whether Wyre could challenge his sentence, and both

counsel and Wyre propose arguing that the district court erred by denying Wyre’s request

at sentencing to substitute counsel.  Both of these arguments are foreclosed by the appeal

waiver.  If the guilty plea stands, so does the waiver. United States v. Wilson, 481 F.3d 475,

483 (7th Cir. 2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir. 2002).  Thus, any

challenge to Wyre’s sentence or the district court’s refusal to substitute counsel would also

be frivolous.  

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