`
`
`
`NONPRECEDENTIAL DISPOSITION
`To be cited only in accordance with Fed. R. App. P. 32.1
`
`United States Court of Appeals
`For the Seventh Circuit
`Chicago, Illinois 60604
`
`Submitted October 23, 2018
`Decided November 20, 2018
`
`Before
`
`MICHAEL S. KANNE, Circuit Judge
`
`DAVID F. HAMILTON, Circuit Judge
`
`AMY C. BARRETT, Circuit Judge
`
`
`No. 17-2625
`
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`
`JEROME MERRIWEATHER,
`
`Defendant-Appellant.
`
`v.
`
`Appeal from the United States District
`Court for the Southern District of Illinois.
`
`No. 15-CR-40046-JPG-6
`
`J. Phil Gilbert,
`Judge.
`
`
`
`O R D E R
`
`
`Jerome Merriweather pleaded guilty to conspiring to distribute heroin, 21 U.S.C.
`§§ 841(a)(1), (b)(1)(B), and 846, and three counts of distributing heroin, 21 U.S.C. §
`841(a)(1), (b)(1)(C). In his plea agreement, Merriweather waived his right to appeal “any
`aspect of the conviction and sentence, including the manner in which the sentence was
`determined or imposed” unless the sentence exceeded the greater of the Sentencing
`Guidelines range or any applicable statutory minimum. In that case, Merriweather
`could appeal the substantive reasonableness of his sentence. The district court
`sentenced him to 228 months’ imprisonment, within the disputed guidelines range of
`188 to 235 months (based on an offense level of 31 and criminal history category VI).
`
`

`

`No. 17-2625
`
`
`
`
`Page 2
`
`Merriweather filed a notice of appeal, but his appointed counsel has concluded
`that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S.
`738 (1967). Merriweather opposes counsel’s motion to withdraw. See Cir. R. 51(b).
`Merriweather later moved to supplement his 51(b) response, which we allowed, and we
`considered the supplemental response in addressing counsel’s motion. Because
`counsel’s brief appears to be thorough and addresses potential issues that this type of
`appeal might be expected to involve, we limit our review to the subjects that counsel
`discusses, along with the issues raised in Merriweather’s responses. See United States
`v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
`
`Counsel first considers whether Merriweather could challenge his guilty plea,
`something Merriweather states he wishes to do. See United States v. Knox, 287 F.3d 667,
`671 (7th Cir. 2002). Although Merriweather waived his right to challenge his conviction,
`“[a]n appeal waiver stands or falls with the underlying guilty plea.” United States v. Zitt,
`714 F.3d 511, 515 (7th Cir. 2013). Thus, enforcement of the waiver depends on whether
`the plea was knowing and voluntary. Id. Merriweather moved to withdraw his plea in
`the district court, but he did not argue that his plea was not knowing or voluntary; he
`contended only that his agreement was an unconscionable adhesion contract that was
`unsupported by adequate consideration. We therefore would review a challenge to the
`voluntariness of the plea for plain error. United States v. Novak, 841 F.3d 721, 727
`(7th Cir. 2016); see United States v. Olano, 507 U.S. 725, 734–735 (1993).
`
`Counsel ponders and properly rejects three potential arguments that
`Merriweather’s guilty plea was not knowing or voluntary because of violations of
`Federal Rule of Criminal Procedure 11. First, the court did not specifically ask
`Merriweather whether his plea “result[ed] from force” as Rule 11(b)(2) requires. But
`counsel correctly observes that Merriweather affirmed under oath that the plea was not
`the result of threats or promises and was freely and voluntarily entered. The plea
`agreement, which Merriweather testified he reviewed with counsel, also stated that it
`was not the result of “any threats, duress, or coercion.”
`
`Second, counsel rightly rejects a challenge to the court’s omission of explicit
`language informing Merriweather of his right to plead not guilty. FED. R. CRIM.
`P. 11(b)(1)(B). But the plea agreement listed Merriweather’s right to plead not guilty.
`Moreover, Merriweather already had pleaded not guilty and could not have been
`ignorant of that right. See Knox, 287 F.3d at 670.
`
`
`

`

`No. 17-2625
`
`
`
`
`Page 3
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`Finally, counsel considers arguing that the district court did not fully explain its
`obligation to determine the correct sentencing guideline range and consider the
`sentencing factors under 18 U.S.C. § 3553(a). But we agree again that such a challenge
`would be frivolous. The plea agreement stated that Merriweather understood that the
`guidelines were advisory and that the court had discretion to sentence him after
`considering the guidelines and the § 3553(a) factors. Substantial compliance with Rule
`11 is sufficient, and we see no non-frivolous argument that any of the three deviations
`affected Merriweather’s substantial rights. See United States v. Blalock, 321 F.3d 686, 688
`(7th Cir. 2003).
`
`Satisfied that the appeal waiver is valid, counsel concludes that the waiver
`would render any other possible arguments frivolous. Indeed, Merriweather’s waiver of
`his right to contest “any aspect of his conviction” would foreclose a challenge to the
`denial of his motion to withdraw his guilty plea. See United States v. Perillo, 897 F.3d 878,
`883 (7th Cir. 2018). The same is true of any potential challenge to the sentence, because
`the sentence is consistent with the conditions upon which Merriweather waived his
`right of appeal; namely, it is within the guideline range and statutory minimum.
`Therefore, any attack on the substantive reasonableness of the sentence would be
`frivolous. See United States v. Polak, 573 F.3d 428, 432 (7th Cir. 2009).
`
`The appeal waiver would also forestall Merriweather’s proposed challenges to
`his conviction based on his innocence of conspiracy, and to his sentence—specifically, to
`the career-offender enhancement and the applicable drug quantity. As already noted,
`Merriweather waived any challenges to the conviction and the way in which the
`sentence was determined or imposed.
`
`Finally, Merriweather opposes his attorney’s motion by arguing that the plea
`was not knowing or voluntary because he had ineffective counsel who “coerced” him to
`sign the agreement, failed to investigate whether Merriweather could have committed
`the charged conspiracy, and failed to inform him of his qualification as a career
`offender. Claims of ineffective assistance, however, are best reserved for a collateral
`proceeding where Merriweather can develop an evidentiary foundation to support
`these claims. See Massaro v. United States, 538 U.S. 500, 505–06 (2003); United States
`v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
`
`Merriweather’s motion to supplement his response is GRANTED but for the
`reasons discussed, Counsel’s motion to withdraw is GRANTED, and the appeal is
`DISMISSED.
`
`