In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1014

ARMANDO NUNEZ,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3385—Harry D. Leinenweber, Judge.

____________

SUBMITTED JULY 19, 2006—DECIDED JULY 31, 2007

____________

Before EASTERBROOK, Chief Judge, and BAUER AND

COFFEY, Circuit Judges.

EASTERBROOK, Chief Judge. Charged with multiple

cocaine offenses, Armando Nunez negotiated a plea

bargain: the prosecutor dismissed all counts but one

and recommended a sentence at the lowest point in the

Guideline range. As part of the deal, Nunez agreed not to

appeal or file a collateral attack unless the sentence

exceeded the statutory maximum or the waiver clause

itself should be deemed invalid. The sentence of 160

months’ imprisonment followed the prosecutor’s recommendation and is well under the statutory maximum. See

21 U.S.C. §841(b). Nunez has never argued that the

waiver is invalid. Nonetheless, he told his lawyer to appeal
2 No. 06-1014

(or so he says; the assertion has been contested, but we

shall assume that Nunez did ask). When the lawyer

balked, he filed this collateral attack under 28 U.S.C.

§2255 charging counsel with providing ineffective assistance.

Although Nunez never asked the district court for leave

to withdraw the plea—and in open court assured the

judge that the deal was satisfactory and his assent

voluntary—he now maintains that the guilty plea was

involuntary because he could not understand what his

lawyer told him out of court. If the plea was involuntary,

then the waiver falls because it is part of the whole

package. See United States v. Wenger, 58 F.3d 280 (7th

Cir. 1995). But the lack of a motion to withdraw the plea

means that Nunez must overcome that forfeiture by

showing cause and prejudice. (On direct appeal the

standard would have been plain error, see United States v.

Vonn, 535 U.S. 55 (2002), but on collateral attack the

forfeiture is complete and the petitioner must meet the

higher standard of cause and prejudice. See United States

v. Frady, 456 U.S. 152 (1982).) Nunez would lose on any

standard, however, as the district judge concluded.

Nunez contends that he speaks no English, and that,

because during some consultations with his counsel an

interpreter was not present (or was not used), he could not

understand what counsel told him and therefore did not

comprehend the plea bargain’s terms. That assertion is

inconsistent with assurances given to the judge, under

oath, when entering the plea. Nunez told the judge—

through an interpreter—that he fully understood the plea

and the bargain’s terms. The judge asked him detailed

questions; his answers evinced knowledge. His counsel

explained to the court how the plea had been negotiated

and that Nunez often spoke in English and understood

their exchanges when interpreters were not present (or

were not employed). Nunez told the judge that this was

correct.
No. 06-1014 3

Defendants cannot obtain relief by the expedient of

contradicting statements freely made under oath, unless

there is a compelling reason for the disparity. See, e.g.,

United States v. Peterson, 414 F.3d 825, 826–27 (7th Cir.

2005); United States v. Stewart, 198 F.3d 984 (7th Cir.

1999); United States v. Messino, 55 F.3d 1241, 1248 (7th

Cir. 1995); United States v. Ellison, 835 F.2d 687, 692–93

(7th Cir. 1987). Nunez offers no reason at all; his appellate

briefs simply ignore what he told the judge in open court.

What is more, if, as the record demonstrates, Nunez

fully understood the bargain’s terms by the time he

stood before the judge, it doesn’t make any difference

whether he understood all of what his lawyer had said

earlier. The plea was voluntary.

Because the plea was voluntary, the waiver must be

enforced. And that waiver knocks out Nunez’s argument

that his lawyer failed to follow his direction to file an

appeal. The waiver has only two exceptions: an illegally

high sentence, and a defect in the waiver itself. A claim of

post-sentencing ineffective assistance falls squarely

within the waiver.

In saying this, we recognize that six courts of appeals

have held that a waiver of appeal does not relieve counsel

of the duty to file a notice of appeal on his client’s request.

See United States v. Campusano, 442 F.3d 770, 772–77 (2d

Cir. 2006); United States v. Poindexter, 2007 U.S. App.

LEXIS 15360 (4th Cir. June 28, 2007); United States v.

Tapp, 2007 U.S. App. LEXIS 15343 (5th Cir. June 28, 2007);

United States v. Sandoval-Lopez, 409 F.3d 1193, 1195–99

(9th Cir. 2004); United States v. Garrett, 402 F.3d 1262,

1265–67 (10th Cir. 2005); Gomez-Diaz v. United States,

433 F.3d 788, 791–94 (11th Cir. 2005). These decisions all

rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470

(2000), that a criminal defendant has a statutory right to

appellate review, and that when counsel utterly frustrates
4 No. 06-1014

that right by failing to appeal on his client’s request,

counsel’s performance is automatically ineffective. A

lawyer who does not show up for trial might as well be a

moose, and giving the defendant a moose does not satisfy

the sixth amendment. See United States v. Cronic, 466

U.S. 648 (1984). The same understanding applies when the

lawyer does not show up for appeal.

There is much to be said for this position, because

waivers of appeal are not airtight. As we have already

observed, a waiver stands or falls with the plea bargain of

which it is a part. A defendant who wants a lawyer to

argue on appeal that the plea was involuntary has a

right to that legal assistance. Moreover, waivers of

appeal have different scope. Some—for example, the

waiver in Poindexter—concern only the sentence; an appeal that calls the conviction itself into question is not

foreclosed by such a waiver. Had the district judge imposed

a sentence higher than the statutory maximum, Nunez too

could have appealed.

A rule that a lawyer must file an appeal on demand, and

let the court of appeals sort out whether the defendant

is entitled to appellate review, avoids any need to make

nice distinctions during the 10 days allowed for appeal (or

on collateral review if the lawyer fails to file the notice).

Simplicity is a virtue, and a mechanical rule (“On request,

file a notice of appeal”) could be a good addition to the

Federal Rules of Criminal Procedure whether or not the

Constitution demands this outcome.

We confess to some doubt about the constitutional

reasoning of the circuits that have located in the sixth

amendment a rule that a lawyer is the client’s puppet. In

Roe the Court remarked that a failure to file a notice of

appeal “cannot be considered a strategic decision; filing

a notice of appeal is a purely ministerial task, and the

failure to file reflects inattention to the defendant’s
No. 06-1014 5

wishes.” 528 U.S. at 477. Usually that’s true, for an appeal

can help but not harm the defendant. But filing cannot

be called “ministerial” when the defendant has waived

any entitlement to appeal, not only in the plea agreement but also in open court. See Fed. R. Crim. P.

11(b)(1)(N). There is no constitutional entitlement to

revoke a waiver; to the contrary, waivers must be enforced

even if the defendant changes his mind. A defendant who

waits past the time for appeal (10 days in federal court) to

ask his lawyer to proceed cannot expect that this will be

done as a “purely ministerial” task, for after 10 days there

is no longer a right to appeal; likewise there is no longer a

right to appeal following a waiver.

Far from having a ministerial duty to follow his client’s

(latest) wishes, a lawyer has a duty to the judiciary to

avoid frivolous litigation—and an appeal in the teeth of a

valid waiver is frivolous. A lawyer also has a duty to his

client to avoid taking steps that will cost the client the

benefit of the plea bargain. (That’s another reason why

filing a notice of appeal, if the client has surrendered that

right in exchange for something he values more, such as

a shorter sentence, can’t be called a “ministerial duty.”) A

lawyer might have a responsibility to file an appeal if the

client indicated a desire to withdraw the plea, for that

amounts to a declaration by the defendant of willingness

to give up the plea’s benefits, and withdrawal would

abrogate the waiver too; but Nunez (who had not moved to

withdraw the plea) does not contend that he told his

lawyer that he had any desire to achieve that goal by an

appeal.

Ordinarily a lawyer cannot make an independent

decision about whether an appeal would be frivolous but

must follow the procedure outlined in Anders v. California,

386 U.S. 738 (1967), and proceed as an advocate until the

judiciary agrees with counsel’s belief that more litigation

would be frivolous. As we explained in United States v.
6 No. 06-1014

Eskridge, 445 F.3d 930, 932 (7th Cir. 2006), however, the

Anders procedure is required only when there is a right to

appeal (and thus a right to have counsel act as an advocate

on appeal). Nunez gave up his right to appeal, and with

it the foundation for the Anders approach.

With the waiver in force, counsel’s duty to protect his

client’s interests militates against filing an appeal. United

States v. Whitlow, 287 F.3d 638 (7th Cir. 2002), and United

States v. Hare, 269 F.3d 859 (7th Cir. 2001), hold that,

when a defendant violates a plea agreement by appealing

despite a promise not to do so, the prosecutor may withdraw concessions made as part of the bargain. The prosecutor made substantial concessions to Nunez. An appeal

could have put them in jeopardy, allowing the prosecutor

to reinstate the two dismissed charges or ask the district

court to increase the sentence on the existing conviction. If

it did nothing else, an appeal would have demonstrated

that Nunez had not accepted responsibility and would

have entitled the judge to rescind the discount under

U.S.S.G. §3E1.1. A defendant has more reason to protest

if a lawyer files an appeal that jeopardizes the benefit of

the bargain than to protest if the lawyer does nothing—for

“nothing” is at least harmless.

The sort of appeal that the Supreme Court considered in

Roe is one where the defendant can gain but not lose.

The sort of appeal that Nunez wanted to take was one by

which he could lose but not gain. Protecting a client from

a lay-person’s folly is an important part of a lawyer’s job.

It will not do to reply, along the lines of Roe, that whether

to appeal is a decision entrusted to the defendant personally, on which the lawyer may give advice but not act

unilaterally. Nunez had made a personal decision—a

decision not to appeal. That’s what the waiver was all

about. As we’ve stressed, a defendant has no right to

countermand such a formal choice, and a lawyer faced with
No. 06-1014 7

inconsistent instructions by his client does not have a

“ministerial” duty to follow one rather than the other. The

lawyer’s duty is to do what’s best for the client, which

usually means preserving the benefit of the plea bargain.

But we need not decide whether these arguments are a

sufficient response to the mandatory-appeal-notwithstanding-the-waiver-of-appeal approach that our colleagues in other circuits have derived from Roe. For

there remains the question whether Nunez is entitled to

relief based on a conclusion that his lawyer furnished

ineffective assistance after the district judge pronounced

sentence. Recall that the waiver Nunez negotiated forswears not only a direct appeal but also any opportunity to

wage a collateral attack. Ineffective assistance before the

plea’s acceptance might spoil the plea’s validity and thus

undermine the waiver. But ineffective assistance after

the plea (indeed, after the sentence’s imposition) cannot

retroactively make the plea invalid. Waivers of appeal

block constitutional as well as statutory arguments. See

United States v. Behrman, 235 F.3d 1049 (7th Cir. 2000).

If the plea (and thus the waiver) is valid, an argument

that counsel furnished ineffective assistance is among the

foreclosed theories. Jones v. United States, 167 F.3d 1142,

1145 (7th Cir. 1999), holds that a claim of ineffective

assistance may be open under §2255, but that “the right to

mount a collateral attack . . . survives only with respect to

those discrete claims which relate directly to the negotiation of the waiver.” See also United States v. Joiner, 183

F.3d 635, 644–45 (7th Cir. 1999). Nunez’s challenge to his

lawyer’s handling of the appeal has nothing to do with the

negotiation of the waiver. Thus Nunez’s waiver must be

enforced and his collateral attack dismissed whether or

not his lawyer should have filed an appeal on demand.

AFFIRMED
8 No. 06-1014

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-31-07