United States v. Markell Palmer-Tate ( 2021 )

NONPRECEDENTIAL DISPOSITION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 January 5, 2021
Decided January 27, 2021
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19-3299
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Fort Wayne Division.
v. No. 1:16CR78-001
MARKELL PALMER-TATE, Damon R. Leichty,
Defendant-Appellant. Judge.
ORDER
Markell Palmer-Tate pleaded guilty to attempted bank robbery, 18 U.S.C.
§ 2113(a), (d), (e), and was sentenced to 188 months in prison (the bottom of the
guidelines range) and three years of supervised release. Although his plea agreement
contained a broad appellate waiver, he filed a notice of appeal. His appointed counsel
asserts that the appeal is frivolous and moves to withdraw. See Anders v. California,
386 U.S. 738, 746 (1967). Palmer-Tate did not respond to counsel’s motion. See CIR.
R. 51(b). Counsel’s brief explains the nature of the case and addresses the issues for an
appeal of this kind, and we limit our review to these issues. See United States v. Bey, 748
F.3d 774, 776 (7th Cir. 2014).
No. 19-3299 Page 2
Palmer-Tate wishes to withdraw his plea, see United States v. Konczak, 683 F.3d
348, 349 (7th Cir. 2012), so counsel asks whether she could raise a nonfrivolous claim
that it was involuntary. She correctly concludes that she could not. First, she notes that
the transcript of the plea colloquy does not reflect any sign of coercion, and the judge
substantially complied with Federal Rule of Criminal Procedure 11—and, in particular,
directly confirmed with Palmer-Tate that no one had tried to force him to plead guilty,
that no one offered him any promises in order to get him to plead guilty, and that he
was pleading guilty of his own free will. See FED. R. CRIM. P. 11(b)(2). No evidence
undermines Palmer-Tate’s sworn statements during the plea colloquy, which are
presumed true. See United States v. Graf, 827 F.3d 581, 584 (7th Cir. 2016).
Counsel next points to a minor omission in the Rule 11 colloquy: The judge did
not warn Palmer-Tate that his statements could be used in a future perjury prosecution.
See FED. R. CRIM. P. 11(b)(1)(A). But this omission is harmless because there is no current
or prospective prosecution against him. See United States v. Stoller, 827 F.3d 591, 597–98
(7th Cir. 2016).
Counsel also considers whether Palmer-Tate could challenge the denial of his
motion to withdraw his plea based on a claim of innocence—specifically, that he took
no substantial step toward an attempted bank robbery. Counsel rightly rejects this
argument because Palmer-Tate admitted at his change-of-plea hearing that he
committed the essential elements of 18 U.S.C. § 2113(a)—that he waited on-scene as the
getaway driver while his codefendants kidnapped a bank employee at gunpoint in
order to rob the bank by force. See United States v. Thornton, 539 F.3d 741, 750 (7th Cir.
2008) (describing a threat of force to a bank employee as a “typical attempted bank
robbery”), United States v. Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (defining a
substantial step as an “overt act … which in the ordinary and likely course of things
will result in[] the commission of the particular crime”).
An appeal waiver stands or falls with the validity of the guilty plea, and Palmer-
Tate’s guilty plea is valid. United States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018). So the
appeal waiver must be enforced. An exception exists if the judge considered
constitutionally impermissible factors at sentencing or imposed a sentence outside the
statutory range. United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). But the
judge did not rely on any impermissible factors, and the sentence does not exceed the
statutory maximum.
No. 19-3299 Page 3
One final point: counsel considers whether Palmer-Tate could argue that his
defense attorney was constitutionally ineffective but properly recognizes that claims of
ineffective assistance are best raised on collateral review. See Massaro v. United States,
538 U.S. 500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.