USA v. Hugh McGowan, No. 12-3396 (7th Cir. 2013)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 9, 2013 Decided May 9, 2013 Before RICHARD A. POSNER, Circuit Judge DANIEL A. MANION, Circuit Judge DIANE P. WOOD, Circuit Judge No. 12-3396 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HUGH L. McGOWAN, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CR-39 William C. Griesbach, Chief Judge. ORDER Hugh McGowan trafficked cocaine from Chicago for sale to buyers in Wisconsin s Fox River Valley. Drug Enforcement Administration agents made 45 controlled buys from dealers in the region, many of whom had ties to McGowan, and the agents arrested McGowan after executing a search warrant on his house. He pleaded guilty to conspiracy to distribute and to possess with intent to distribute crack cocaine, and possession of crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). McGowan s plea agreement included a waiver of his right to appeal any sentence below the statutory maximum that did not result from ineffective assistance of counsel or consideration of constitutionally impermissible factors. The district court imposed 180 months imprisonment and 5 years supervised release. McGowan filed a notice of appeal, but his appellate counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, No. 12-3396 Page 2 386 U.S. 738, 744 (1967). McGowan has not responded to counsel s submission. See CIR. R. 51(b). We review only the potential issues identified in counsel s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 74 (7th Cir. 2002). McGowan has told counsel that he does not want his guilty plea set aside, so counsel properly omits from his Anders submission any discussion about the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670 72 (7th Cir. 2002). It follows, says counsel, that McGowan s appeal waiver makes this appeal frivolous. We agree with counsel; because an appeal waiver stands or falls with the guilty plea, United States v. Zitt, Nos. 12-1277, 12-2865, 2013 WL 1501956, at *4 (7th Cir. Apr. 15, 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), McGowan s waiver must be enforced. Moreover, no element of his sentence exceeds a statutory maximum, see 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii), and the court did not rely on any unconstitutional factor when imposing McGowan s sentence. The motion to withdraw is GRANTED, and the appeal is DISMISSED.
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