UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

ROBERT CARRICO, 

PETITIONER, 

 v. 

UNITED STATES OF AMERICA, 

RESPONDENT. 

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CAUSE NO. 3:16-CV-895 RLM

(ARISING FROM 3:14-CR-11 RLM)

OPINION AND ORDER 

Robert Carrico’s motion to vacate and correct his sentence under 28 U.S.C. 

§ 2255 is before the court. He raises two arguments in his motion: (1) that his 

counsel was ineffective for not objecting at sentencing to the court’s calculation 

of the number of firearms Mr. Carrico possessed; and (2) that his counsel was 

ineffective for not filing a notice of appeal when instructed to do so by Mr. 

Carrico. For the reasons that follow, the court denies Mr. Carrico’s motion. 

Mr. Carrico pleaded guilty to possession with intent to distribute 

marijuana, 21 U.S.C. § 841(a)(1), and possession of a firearm in relation to drug 

trafficking activities. 18 U.S.C. § 924(c). The court sentenced him to 12 months 

for possession with intent to distribute marijuana and 80 months for possession 

of a firearm in relation to drug trafficking activities, with the terms to be served 

consecutively. This court reduced Mr. Carrico’s sentence for possession with 

intent to distribute marijuana to six months following the Sentencing 

Commission’s decision to lower the base offense levels associated with drug 

quantities in trafficking offenses in 2014. His term of imprisonment for 
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possession of a firearm in relation to drug trafficking activities remains 

unchanged. 

A person convicted of a federal crime can challenge his sentence on the 

grounds that the sentence violates the Constitution or laws of the United States. 

28 U.S.C. § 2255(a). An evidentiary hearing isn’t required if “the motion and files 

and records of the case conclusively show that the petitioner is entitled to no 

relief.” 28 U.S.C. § 2255. After reviewing Mr. Carrico’s petition and the record of 

this case, the court concludes that the factual and legal issues raised can be 

resolved on the record, so no hearing is necessary. See Menzer v. United States, 

200 F.3d 1000, 1006 (7th Cir. 2000) (hearing not required where the record 

conclusively demonstrates that a petitioner is entitled to no relief on § 2255 

motion). 

The court can’t reach the merits of Mr. Carrico’s arguments because the 

appeal waiver prevents him from raising them. Mr. Carrico's plea agreement, 

signed by Mr. Carrico, his attorney Mark Lenyo, and Assistant United States 

Attorney Donald Schmid, contains the following language: 

I expressly waive my right to appeal or to contest my conviction and 

all components of my sentence, or the manner in which my 

conviction or my sentence was determined or imposed, to any Court 

on any ground, including any claim of ineffective assistance of 

counsel unless the claimed ineffective assistance of counsel relates 

directly to the negotiation of this plea agreement, including any 

appeal under Title 18, United States Code, Section 3742 or any postconviction proceeding, including but not limited to, a proceeding under 

Title 28, United States Code, Section 2255[.] 

[Doc No. 10, ¶ 9(e) (emphasis added)]. 
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A court “will enforce an appeal waiver in a plea agreement if the terms of 

the waiver are clear and unambiguous and the defendant knowingly and 

voluntarily entered into the agreement.” United States v. Worden, 646 F.3d 499, 

502 (7th Cir. 2011). “To bar collateral review, the plea agreement must clearly 

state that the defendant waives his right to collaterally attack his conviction or 

sentence in addition to waiving his right to a direct appeal.” Keller v. United 

States, 657 F.3d 675, 681 (7th Cir. 2011) (italics omitted). “[A] defendant’s 

freedom to waive his appellate rights includes the ability to waive his right to 

make constitutionally-based appellate arguments” and “preclude appellate 

review even of errors that are plain in retrospect.” United States v. Smith, 759 

F.3d 702, 707 (7th Cir. 2014). 

Mr. Carrico’s claim is within the scope of the waiver and he declared that 

he offered his “plea of guilty freely and voluntarily and of [his] own accord.” [Doc 

No. 10, ¶ 12]. He doesn’t dispute that his plea was entered knowingly and 

voluntarily. Instead, Mr. Carrico argues that his claim falls within one of the 

limited exceptions to the rule that a court must enforce an appeal waiver: 

ineffective assistance of counsel. Mr. Carrico contends that a plea agreement’s 

waiver of right to appeal or collaterally challenge a sentence doesn’t include a 

waiver of the right to bring a challenge based on ineffective assistance of counsel 

at sentencing or for failure to file an appeal notice. 

Controlling precedent in this circuit allows a court to disregard a waiver if 

“the defendant claims ineffective assistance of counsel in connection with the 

negotiation of the plea agreement.” Keller v. United States, 657 F.3d 675, 681 
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(7th Cir. 2011) (emphasis added); Gaylord v. United States, 829 F.3d 500, 505 

(7th Cir. 2016). But see United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994) 

(recognizing an exception to the requirement that appeal waivers be enforced if 

the defendant claims ineffective assistance of counsel at the proceedings 

following the entry of the plea). 

Mr. Carrico doesn’t claim ineffective assistance of counsel in connection 

with the negotiation of his plea agreement. Instead he claims that his counsel 

was ineffective at sentencing and for not filing a notice of appeal. Those aren’t 

grounds that allow a court to disregard an appeal waiver. See Solano v. United 

States, 812 F.3d 573, 577 (7th Cir. 2016) (holding that when a petitioner has 

agreed to an appeal waiver, he “may not bring an ineffective assistance of counsel 

claim for his attorney's failure to file an appeal, even one he explicitly requested”); 

Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (enforcing an appeal 

waiver where the “ineffective assistance of counsel claim relate[d] only to [the] 

attorney's performance with respect to sentencing,” not the negotiation of the 

waiver). Therefore, Mr. Carrico’s appeal waiver must be enforced and this court 

can’t reach the merits of his claims. 

Based on the foregoing, the court DENIES Mr. Carrico’s § 2255 motion to 

vacate and correct his sentence [Doc. No. 40]. 

SO ORDERED. 

ENTERED: March 1, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court