# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 20, 2011

Decided January 20, 2011

Before

RICHARD A. POSNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10

‐ 1186

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

DARRYL D. TAYLOR,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Indiana,

Hammond Division.

No. 2:08cr88

‐ 014

Rudy Lozano,

Judge

.

O R D E R

Darryl Taylor was living in Colorado and supplying methamphetamine to

coconspirators in Indiana from early 2005 until his indictment in 2008. Twice during that

period, in Kansas and then Iowa, police stopped and searched his car, finding more than a

kilogram total of methamphetamine. He was charged with a drug conspiracy in the

Northern District of Indiana, s ee 21 U.S.C. §§ 846, 841(a)(1), and stipulated that the crime

involved at least 500 grams of a mixture containing methamphetamine. By statute that

amount was enough to trigger a minimum prison term of 10 years, id. § 841(b)(1)(A)(viii),

though Taylor already had two felony drug convictions which, at the prosecutor’s

discretion, could have been used to enhance the minimum to life, see id

. §§ 841(b)(1)(A)(viii),

851. The government relinquished that enhancement as part of a plea agreement, and NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

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

‐ 1186 Page 2

Taylor in turn acknowledged that he faced at least 10 years in prison and promised not to

appeal his conviction or sentence on any ground other than a claim of ineffective assistance

relating “directly” to the appeal waiver or its negotiation. The district court sentenced

Taylor to 10 years, to be followed by 5 years of supervised release.

Despite that waiver Taylor directed retained counsel to file a notice of appeal, and

afterward the lawyer withdrew when Taylor accused him of being deficient. We appointed

substitute counsel, but the new lawyer represents that the appeal is frivolous and moves to

withdraw under Anders v. California

, 386 U.S. 738 (1967). Taylor has not accepted our

invitation to comment on counsel’s submission. See C IR

. R. 51(b). We confine our review to

the potential issue discussed in counsel’s facially adequate brief. See United States v. Schuh

,

289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

Taylor has told appellate counsel that his former lawyer coerced his guilty plea by

failing to timely share discovery materials received from the prosecutor, spending

inadequate time exploring the underlying facts and filing motions, and talking with him too

infrequently, including during plea negotiations. Appellate counsel cannot find factual

support in the record for these complaints, none of which specifically target counsel’s

performance in negotiating or recommending the appeal waiver. The district court

discussed the waiver at length during the plea colloquy, s ee F ED

. R. C RIM

. P. 11(b)(1)(N), and

under oath Taylor assured the court that he had read and discussed the waiver with former

counsel, that he understood the waiver and did not have questions, and that he was

agreeing to it voluntarily. Those averments imply dim prospects for success, Hutchings v.

United States

, 618 F.3d 693, 699

‐ 700 (7th Cir. 2010); United States v. Peterson

, 414 F.3d 825,

826

‐ 27 (7th Cir. 2005), but as appellate counsel observes, direct appeal is the wrong time for

the claim. Complaints about a lawyer’s performance in the district court are better saved

for collateral review, where it is possible to make a record of the reasons underlying

counsel ʹ s choices and tactics. See Massaro v. United States

, 538 U.S. 500, 504 (2003); United

States v. Harris

, 394 F.3d 543, 557

‐ 58 (7th Cir. 2005).

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