United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 10, 2005

Decided November 14, 2005

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 04-3704

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES E. TURNER,

Defendant-Appellant.

Appeal from the United States

District Court for the Southern

District of Indiana, Evansville

Division

No. 3:03CR00010-001

Richard L. Young, 

Judge.

O R D E R

Police arrested James Turner when he delivered 30 grams of crack to a street

dealer working as an informant. Turner pleaded guilty to conspiring to possess at

least 5 grams of crack with the intent to distribute, see 21 U.S.C. §§ 846, 841(a)(1);

as part of his plea agreement Turner waived any right to appeal his conviction and

sentence so long as the district court accepted the parties’ guideline stipulations

and imposed a prison term within the resulting range. The district court accepted

the stipulations and sentenced Turner within the guideline range to 170 months’

imprisonment, eight years’ supervised release, and a $100 special assessment. 

Turner has filed an appeal despite the waiver, but his appointed counsel moves to

withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders

v. California, 386 U.S. 738 (1967). Turner has responded to the motion under

Circuit Rule 51(b), and we confine our review to the potential issues identified in

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-3704 Page 2

counsel’s facially adequate brief and Turner’s response. See United States v.

Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

The appeal waiver in Turner’s plea agreement was triggered when the

district court accepted the parties’ sentencing stipulations and imposed a sentence

within the resulting guideline range. That waiver is an unqualified promise by

Turner to forego challenging his “conviction and sentence . . . on any ground”

whether by direct appeal or in a collateral proceeding. A defendant’s knowing and

voluntary waiver of his right to appeal is valid and enforceable. See United States

v. Bownes, 405 F.3d 634, 636–37 (7th Cir. 2005). Waivers of appeal stand or fall

with the guilty plea itself, and thus Turner’s unambiguous waiver bars this appeal

so long as his guilty plea was entered into knowingly and voluntarily. United

States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002).

Forced to confront the waiver, counsel considers whether Turner might argue

that his guilty plea should be set aside on the ground that the district court did not

comply fully with Rule 11 of the Federal Rules of Criminal Procedure in taking the

plea. Counsel is correct to address this question because Turner wants to back out

of his guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). 

Turner did not attempt to withdraw his plea in the district court, and thus he would

have to demonstrate plain error before we would set it aside on appeal. See United

States v. Vonn, 535 U.S. 55, 58–59 (2002); United States v. Gibson, 356 F.3d 761,

765–66 (7th Cir. 2004). 

Counsel concludes that any Rule 11 argument would be frivolous because the

district court substantially complied with the rule’s requirements. We agree. First,

counsel points out that the district court did not mention Turner’s right to an

attorney, see Fed. R. Crim. P. 11(b)(1)(D), but Turner could not possibly have been

harmed by the omission because appointed counsel was with him during the

colloquy, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988). Second,

counsel notes that the district court did not inform Turner of the recently added

requirement that he could testify on his own behalf if he chose to go to trial. See

Fed. R. Crim. P. 11(b)(1)(E). But because substantial compliance with Rule 11 is

sufficient to ensure the validity of the plea, see United States v. Blalock, 321 F.3d

686, 688–89 (7th Cir. 2003); Schuh, 289 F.3d at 975, and considering the district

court’s otherwise extensive colloquy, we agree with counsel that a challenge to the

plea based on these omissions would be frivolous. Therefore both the guilty plea

and the appeal waiver stand.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this

appeal.