United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 14, 2007

Decided May 30, 2008

Before

         WILLIAM J. BAUER, Circuit Judge

      JOHN L. COFFEY, Circuit Judge

      ILANA DIAMOND ROVNER, Circuit Judge

No. 06‐4210

UNITED STATES OF AMERICA,

           Plaintiff‐Appellee,

v.

BRANDON T. THOMAS,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District of Indiana,

Hammond Division

No. 2:06 CR 39‐01

Rudy Lozano,

Judge.

O R D E R

Brandon Thomas pleaded guilty to one count of possession with intent to distribute

at least 5 grams of crack.  See 21 U.S.C. § 841(a)(1), (b)(1)(B).  He agreed in a written plea

agreement that the district court should sentence him at the high end of the guidelines

range, which the court did, ordering Thomas to serve 71 months in prison.  Thomas also

agreed to waive his right to appeal his conviction and sentence, but in spite of this he

directed his appointed counsel to file a notice of appeal anyway.  Counsel now seeks to

withdraw under Anders v. California, 386 U.S. 738 (1967), because he has been unable to

discern a nonfrivolous basis for appeal.  Thomas has not accepted our invitation to

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 06‐4210 Page 2

comment on counsel’s motion.  See CIR. R. 51(b).  Because counsel’s supporting brief is

facially adequate, we limit our review to the potential issues in that brief.  See United States

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

Thomas promised in his plea agreement that he would not challenge his conviction

or sentence, except on a few limited grounds that are not relevant here.  Accordingly,

Thomas is bound by the appeal waiver unless he wants his entire plea agreement set aside.

See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002); United States v. Hare, 269 F.3d

859, 860‐61 (7th Cir. 2001).  Counsel advises that Thomas does not seek this relief, a

representation that Thomas could have but has not disputed in a response under Rule 51(b).

We thus we agree with counsel that any challenge to Thomas’s conviction or sentence

would be frivolous.

Counsel also points out that the sentencing judge remarked that he could presume

reasonable any sentence within the guidelines range.  This presumption applies only to

appellate review of a sentence; the district court must impose a sentence that comports with

the factors in 18 U.S.C. § 3553(a) and may not presume that a within‐guidelines sentence is

reasonable.  Rita v. United States, 127 S. Ct. 2456, 2465 (2007); United States v. Miranda, 505

F.3d 785, 791 (7th Cir. 2007).  If Thomas had not waived his right to challenge the sentence,

we would consider the relevance of Thomas’s concession in his plea agreement that it was

appropriate for the court to sentence him at the high end of the guidelines range, which the

court did.  But a potential challenge to the sentence based on the judge’s remark is

necessarily frivolous because Thomas gave up his right to challenge his sentence based on

this or any other perceived sentencing error.  See United States v. Lockwood, 416 F.3d 604, 608

(7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 636‐37 (7th Cir. 2005).  That waiver is

also broad enough to cover developments in the law that post‐dated Thomas’s sentencing,

such as the freedom district courts now have under Kimbrough v. United States, 128 S.Ct. 558

(2007), to disagree with 100:1 disparity in the guidelines for crack relative to powder cocaine

offenses. See Lockwood, 416 F.3d at 608.

Accordingly, counselʹs motion to withdraw is GRANTED, and the appeal is

DISMISSED.