## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 02-1680

U NITED S TATES OF A MERICA , Plaintiff-Appellee
, v.

RYANM AEDER , Defendant-Appellant.

____________ Appeal from the United States District Court for the Western District of Wisconsin. No. 01 CR 111— John C. Shabaz
, Judge.

____________ A PRIL 17, 2003

____________

Before R IPPLE , K ANNE and R OVNER , Circuit Judges

. P ERC URIAM . 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 no tice 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 potential2 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 counse l 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 “knowingand 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 distri ct court failed to specifically tell Mr. Maeder that he was waiving his right to a trial bypleading 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 supervis ed release. Fed. R. Crim. P. 11(c)(1).

The first error appears harmless because the district court explained in great deta il 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, 906-07No. 02-1680 3
(7th Cir. 1983). With respect to the second error, it toowould have been harmless if the combined terms of imprisonment—57 months—and supervised release—36 months— fell below the maximum senten ce 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 with draw 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, wegranted 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 Andersmotion 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 harm less: the failure to advise the defendant that he could plead not guilty appearedharmless 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 c lient, 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 doesnot 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 issu e 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 co ncludes that a challenge would not be frivolous, withdraw the Anders motion and request a briefing schedule. If counse l amends his brief, he must state in the brief whether he has advised Mr. Maeder of the ramifications of withdraw ing 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