United States of America v. Nathaniel Wilke

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 6, 2024
Decided March 6, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-1416
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NATHANIEL WILKE,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 21-cr-0062-bhl-1
Brett H. Ludwig,
Judge.
O R D E R
Nathaniel Wilke pleaded guilty to possessing marijuana with intent to distribute
and possessing a firearm in furtherance of a drug-trafficking offense, and he was
sentenced to eight years’ imprisonment and five years’ supervised release. Wilke
appeals, but his appointed lawyer asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s brief explains the
nature of the case and addresses the issues that a case of this kind might be expected to
involve. We notified Wilke of counsel’s motion, and he did not respond. See C IR . R.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1416 Page 2
51(b). Because counsel’s brief appears thorough, we limit our review to the subjects that
counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In December 2019, police officers in Milwaukee, Wisconsin, observed Wilke
selling drugs from his home within a residential building. They searched the home
pursuant to a warrant and found more than a pound of marijuana, three loaded
firearms, and other items related to the drug trade. Wilke was arrested on several state
charges, which were dropped when the federal government filed a criminal complaint
against him in February 2021. The grand jury later returned a seven-count indictment
against him and a codefendant, charging various drug- and firearms-related offenses.
Wilke later entered into a plea agreement under which he would plead guilty to
a two-count information. He pleaded guilty to possessing drugs with intent to
distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(c), (b)(1)(D), and possessing a firearm in
furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i). Under
Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Wilke and the government
agreed to a sentence of eight years’ imprisonment and a minimum term of supervised
release. The agreement also contained a broad waiver of his appellate rights. At the
change-of-plea hearing, after a detailed colloquy with Wilke, the district court approved
the plea agreement and accepted the guilty plea.
About three months after pleading guilty and a few days before his scheduled
sentencing hearing, Wilke filed a pro se motion to withdraw his guilty plea. His
appointed counsel then withdrew from representing him. Wilke later appeared at a
status hearing with new counsel, who informed the court that Wilke wished to rescind
his motion. Wilke agreed, stating: “I want to confirm that I’m accepting the plea, and I
want to go forward with sentencing.” At a rescheduled sentencing hearing, the court
imposed the agreed-upon sentence of eight years’ imprisonment and five years’
supervised release, and it granted the government’s motion to dismiss the indictment as
to Wilke. Wilke then appealed.
Appellate counsel reports that Wilke would like to challenge his guilty plea and
therefore considers whether there is a nonfrivolous argument that the guilty plea was
not knowing and voluntary. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012). Because Wilke rescinded his motion to withdraw his guilty plea, we would at
most consider whether there was plain error. United States v. Austin, 907 F.3d 995, 998
(7th Cir. 2018). And we agree with counsel that it would be frivolous to argue that plain
error occurred here. See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013).

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No. 23-1416 Page 3
As counsel explains, the district court substantially complied with Rule 11 of the
Federal Rules of Criminal Procedure. See id. During the colloquy, the court explained,
and determined that Wilke understood, the nature of the charges, the potential
penalties, and the effects of his plea. Wilke agreed with the factual basis presented by
the government. And he confirmed that he understood that he was giving up the rights
that the judge reviewed with him, which included the right to appeal his conviction or
sentence. Wilke verified that he had sufficient time to talk to counsel about his plea and
that he was satisfied with the representation he received. He swore that his plea was
voluntary, and that he had received no promises about his sentence. These statements
under oath are presumed true, see United States v. Barr, 960 F.3d 906, 917 (7th Cir. 2020),
and it would be frivolous to argue that accepting the plea was plain error.
Next, counsel correctly concludes that a challenge to Wilke’s sentence, or any
other appellate argument not specifically exempt from the appeal waiver, would be
frivolous. An appeal waiver “stands or falls” with the underlying guilty plea,
United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020), and, as noted above, Wilke’s plea
is not subject to a colorable challenge on appeal. And no exception to the enforceability
of the waiver could apply: The sentence did not exceed the statutory minimum, and the
judge did not rely on any constitutionally impermissible factors in determining Wilke’s
sentence. See id. at 507. Wilke’s broad waiver is therefore enforceable, and it covers any
challenge to his sentence.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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