USA v. Kevin Blake, No. 11-3346 (7th Cir. 2012)

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 14, 2012 Decided April 12, 2012 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 11 3346 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KEVIN L. BLAKE, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10 CR 197 C.N. Clevert, Jr., Chief Judge. O R D E R Kevin Blake pleaded guilty to conspiring to sell more than five kilograms of crack cocaine between 2007 and 2009. 21 U.S.C. §§ 841(a)(1), 846. The district judge sentenced Blake to 8 years imprisonment and 5 years supervised release. Despite having waived his right to appeal in his plea agreement, Blake brought this appeal. BlakeÊ¹s counsel now seeks to withdraw because he believes the appeal would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Blake has not filed a response. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel s facially adequate brief. United States v. Schuh, 289 F.3d 968, 973 74 (7th Cir. 2002). Counsel first considers whether Blake could argue that his guilty plea is invalid. But Blake has not contested the validity of the plea, see United States v. Knox, 287 F.3d 667, 671 72 (7th Cir. 2002), and an appeal waiver stands or falls with the plea, so the appeal No. 11 3346 Page 2 waiver must stand. See United States v. Quintero, 618 F.3d 746, 752 (7th Cir. 2010); Nunez v. United States, 546 F.3d 450, 454 (7th Cir. 2008). BlakeÊ¹s broad appeal waiver does exclude challenges based on (1) any punishment in excess of the statutory maximum, (2) the sentencing courtÊ¹s reliance on any constitutionally impermissible factor, and (3) ineffective assistance of counsel. But Blake s sentence did not exceed the applicable statutory maximum, see 18 U.S.C. § 3583(b)(1); 21 U.S.C. § 841(b)(1)(A), and counsel has not identified any improper factors that the court relied on in sentencing Blake, see United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). Nor has counsel identified any basis to question his representation of Blake in the district court, and in any event a claim of ineffective assistance is more appropriately pursued in a collateral proceeding. Massaro v. United States, 538 U.S. 500, 504 05 (2003); United States v. Persfull, 660 F.3d 286, 299 (7th Cir. 2011). We GRANT counselÊ¹s motion to withdraw and DISMISS the appeal.

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