In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1680

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RYAN MAEDER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 01 CR 111—John C. Shabaz, Judge.

____________

APRIL 17, 2003

____________

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

PER CURIAM. Ryan Maeder pleaded guilty to conspiring

to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He

was sentenced to 57 months’ imprisonment, three years’

supervised release, $23,477 in restitution, and a $100 fine.

Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance

with Anders v. California, 386 U.S. 738 (1967), because he

cannot discern a nonfrivolous issue for appeal. Because

Mr. Maeder declined our invitation to file a response, see

Circuit Rule 51(b), and counsel’s Anders brief is facially

adequate, we limit our review of the record to the potential
2 No. 02-1680

issues identified in the brief. See United States. v. Schuh,

289 F.3d 968, 973-74 (7th Cir. 2002). For the reasons set

forth below, we direct counsel to either amend his brief

or withdraw his motion.

The facts presented during Mr. Maeder’s plea colloquy,

which he admitted were true, established the following.

Mr. Maeder met with two other men, Lyle Tyson and Corey

Rozowski, on August 9, 2001, to plan to rob the Bank of

Drummond in Barnes, Wisconsin. The following day, Tyson

and Rozowski robbed the bank using BB guns Mr. Maeder

had given them, although Mr. Maeder was not at the bank

during the robbery. Following the robbery, Tyson and

Rozowski fled the bank to a cabin owned by Rozowski’s

relatives. Mr. Maeder met Tyson and Rozowski at the

cabin and gave Rozowski a ride home.

In his Anders brief, counsel affirmatively represents that

the district court committed no errors during its Rule 11

plea colloquy and that Mr. Maeder’s plea was “knowing

and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Maeder

to his guilty plea on that ground would be frivolous.

Our own review of the colloquy has identified two

obvious errors. First, the district court failed to specifically

tell Mr. Maeder that he was waiving his right to a trial by

pleading guilty. Fed. R. Crim. P. 11(c)(4). Second, the district court failed to explain to Mr. Maeder the effect of

violating his term of supervised release. Fed. R. Crim. P.

11(c)(1).

The first error appears harmless because the district

court explained in great detail to Mr. Maeder his right to

a trial and Mr. Maeder acknowledged that he understood

that right. See United States v. Mitchell, 58 F.3d 1221, 1223-24

(7th Cir. 1995); United States v. Frazier, 705 F.2d 903, 906-07
No. 02-1680 3

(7th Cir. 1983). With respect to the second error, it too

would have been harmless if the combined terms of imprisonment—57 months—and supervised release—36 months—

fell below the maximum sentence permitted by statute.

See Schuh, 289 F.3d at 974. But the combined terms—93

months—exceeds the statutory maximum of 60 months,

18 U.S.C. § 371, and so we cannot say, at this point, that

the error is harmless. See Schuh, 289 F.3d at 974.

Because we have identified a potentially nonfrivolous

issue for appeal regarding Mr. Maeder’s plea, we must

next ask the threshold question identified in United States

v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002): Has Mr. Maeder

expressed a desire to withdraw his guilty plea? In Knox,

we considered an Anders motion filed by a lawyer who

also missed two Rule 11 errors in the defendant’s plea

colloquy. Id. at 670. Despite the lawyer’s substandard assessment of the potential issues for appeal, however, we

granted the motion to withdraw and dismissed the appeal because we found nothing in the record suggesting

that the defendant wanted to withdraw his guilty plea. Id.

at 671. For instance, the defendant filed three responses

to his lawyer’s Anders motion in which he expressed dissatisfaction with the length of his sentence and the effectiveness of his counsel, but never his guilty plea (he did

claim that his lawyer misled him into pleading guilty to

three counts rather than just two, but contradicted that

claim elsewhere in the record). Id.

In contrast, Mr. Maeder has filed no response and, in

fact, has refused to even consult with counsel about his

appeal. As a result, we have no way of knowing whether

Mr. Maeder is aware of the potential Rule 11 violations.

Nor do we know what choices he would have made had

he known.
4 No. 02-1680

Although counsel’s failure in Knox to advise his client

of potential Rule 11 violations did not prevent us from

granting the motion to withdraw, the situation presented

here is different. In Knox, the Rule 11 violations which

counsel missed appeared harmless: the failure to advise

the defendant that he could plead not guilty appeared

harmless because he already knew he had that right given that he had originally pleaded not guilty, id. at 670;

the failure to advise him of the effects of supervised release appeared harmless because the combined terms

of incarceration and supervised release did not exceed

the statutory maximum, Schuh, 289 F.3d at 974. Therefore,

even if counsel had recognized the Rule 11 lapses and

had discussed them with his client, we could be reasonably

certain that the defendant would still not have sought to

withdraw his plea. Here, however, the failure to advise

Mr. Maeder of the effects of supervised release may not

have been harmless, and, as far as we can tell, he does

not know about this potential nonfrivolous issue for appeal. Therefore, unlike the situation presented in Knox, the

Rule 11 violation Mr. Maeder may not know about is a

potentially nonfrivolous issue for appeal, and we do not

know whether Mr. Maeder would want to withdraw his

plea if he knew about the issue.

Accordingly, we direct counsel to evaluate the two

potential Rule 11 violations identified above and, within

14 days, either file an amended brief addressing why

any challenge of his plea based upon them would be

frivolous, or if counsel concludes that a challenge would

not be frivolous, withdraw the Anders motion and request

a briefing schedule. If counsel amends his brief, he must

state in the brief whether he has advised Mr. Maeder of

the ramifications of withdrawing his plea, and must serve

the amended brief on Mr. Maeder under Circuit Rule 51(b).

Mr. Maeder may then respond. Cir. R. 51(b).
No. 02-1680 5

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-17-03