United States v. Cortez Humphrey , 582 F. App'x 661 ( 2014 )

NONPRECEDENTIAL DISPOSITION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 April 17, 2014 ∗
Decided November 10, 2014
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2772
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Indiana, Hammond Division.
v.
No. 2:11cr170-001
CORTEZ HUMPHREY,
Defendant-Appellant. Rudy Lozano,
Judge.
ORDER
∗
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 13-2772 Page 2
Operating out of their home in University Park, Illinois, Cortez Humphrey and his
girlfriend supplied heroin for redistribution in Indiana. Humphrey pleaded guilty to
conspiring to possess heroin with intent to distribute and conspiring to distribute heroin.
See 21 U.S.C. '' 841(a)(1), 846. The plea agreement contained an appeal waiver under
which Humphrey agreed to waive his right to contest his conviction, his sentence, or the
manner in which his conviction and sentence were determined or imposed. The district
court sentenced Humphrey to 168 months= imprisonment, well below the calculated
guidelines range of 360 months to life. Despite his appeal waiver, Humphrey appeals.
His appointed lawyer has concluded that the appeal is frivolous and seeks to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Counsel has submitted a brief that
explains the nature of the case and addresses the issues that a case of this kind might be
expected to involve. Because the analysis in the brief appears to be thorough, we limit
our review to the subjects that counsel has discussed. United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). Humphrey
was given an opportunity to respond to the brief pursuant to Circuit Rule 51. Upon his
motion, we extended his time to file a response, but the extended time passed without
any response by him.
Humphrey advised his appointed appellate counsel that he wishes to withdraw his
guilty plea, so counsel properly considered challenging whether the plea was knowing
and voluntary. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States
v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). We agree with counsel that the district court
complied with the requirements of Federal Rule of Criminal Procedure 11. The court
discussed the rights Humphrey would give up by pleading guilty, possible maximum
and statutory minimum penalties, and sentencing procedures, as well as ensured the
plea=s voluntariness and factual basis. See Fed. R. Crim. P. 11(b); United States v. Bowlin,
534 F.3d 654, 656B57 (7th Cir. 2008); United States v. Blalock, 321 F.3d 686, 688 (7th Cir.
2003); United States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002). We agree with counsel that
any challenge to the guilty plea would be frivolous.
Counsel also considered challenging Humphrey=s sentence. But as counsel noted,
Humphrey=s broad appeal waiver forecloses any challenge to his sentence except a claim
that it exceeded the statutory maximum or that the appeal waiver itself resulted from
ineffective assistance. Counsel observed further that an appeal waiver does not prevent
a defendant from challenging a sentence based on an unconstitutional factor. United
States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014); United States v. Lockwood, 416 F.3d
604, 608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). Our
No. 13-2772 Page 3
review of the record confirms that a challenge on any of these remaining grounds would
be frivolous.
Accordingly, we GRANT counsel=s motion to withdraw and DISMISS the appeal.