United States of America v. Albert Larry , Jr .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2790
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LBERT L ARRY , JR .,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-CR-00760(1) — Sara L. Ellis, Judge.
____________________
S UBMITTED M AY 17, 2024 — DECIDED J UNE 25, 2024
____________________
Before KIRSCH , JACKSON -A KIWUMI and PRYOR , Circuit
Judges.
PER C URIAM . Albert Larry appeals his conviction for con-
spiring to commit sex trafficking by force, fraud, or coercion.
See 18 U.S.C. § 1594(c). His appointed lawyer asserts that the
appeal is frivolous and moves to withdraw under Anders v.
California, 386 U.S. 738, 744 (1967). We begin this Anders case,
as we often do, by observing that counsel’s brief explains the
nature of the appeal and addresses the issues that an appeal

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2 No. 23-2790
of this kind might be expected to involve. And we add that,
because counsel’s analysis appears adequate (except in one
respect discussed below), and Larry did not respond to the
motion, see C IR . R. 51(b), we limit our review to the subjects
that counsel discusses. See United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014). But we are taking the additional step of
issuing this ruling as a precedential decision because coun-
sel’s brief, like many other Anders briefs, omits a step in the
Anders analysis, an omission that we will detail shortly in the
hope that it will not recur in future Anders submissions. As we
will also explain, despite this omission, we can grant the mo-
tion and dismiss the appeal.
Larry was charged with sex trafficking. See 18 U.S.C.
§ 1591(a)(1), (b)(1). For about one year, he had advertised the
sexual services of a woman, Victim A, online. During this
time, he took most of the money that Victim A earned from
performing sex acts, physically abused her, and threatened
her family if she ever refused to perform the sex acts Larry
advertised.
Larry entered into a binding plea agreement with the gov-
ernment. F ED. R. C RIM. P. 11(c)(1)(C). In exchange for Larry
pleading guilty to a new charge of conspiracy to commit sex
trafficking, the government agreed to a prison sentence be-
tween 144 and 180 months. Larry expressly waived the right
to challenge his conviction, any pre-trial rulings, and any part
of the sentence or the manner in which it was determined. The
waiver did not apply to a claim of “involuntariness” or inef-
fective assistance of counsel. The district court sentenced
Larry to 160 months’ imprisonment and 5 years’ supervised
release.

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No. 23-2790 3
Counsel first considers potential challenges to the validity
of Larry’s guilty plea on the ground that the district court did
not comply with Rule 11 of the Federal Rules of Criminal Pro-
cedure. It is unclear, however, whether Larry wishes to raise
those challenges. Counsel should not consider in an Anders
brief any arguments about the validity of a guilty plea unless
counsel has consulted with the client, advised the client of the
risks of withdrawal of the plea, and confirmed that the client
wishes to withdraw the plea. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002); United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012). Counsel’s brief does not ex-
plain whether he consulted with Larry about the risks of with-
drawing his plea and whether Larry wishes to do so.
Because other recent Anders submissions have likewise
omitted this critical information, we remind defense counsel
of their obligations. First, before evaluating a potential Rule
11 challenge in an Anders brief, counsel must tell us whether
counsel has consulted with the client about the risks and ben-
efits of withdrawing a guilty plea and the client wishes to pur-
sue a challenge to the plea’s validity. We require this step be-
cause withdrawing a guilty plea often carries significant dis-
advantages, including dissolution of a negotiated plea agree-
ment and its associated benefits. See United States v. Caviedes-
Zuniga, 948 F.3d 854, 855 (7th Cir. 2020). Second, the lawyer
may not simply bypass an inquiry into a possible Rule 11 chal-
lenge unless counsel has consulted with the defendants about
the risks and benefits of such a challenge. “Only if, after coun-
sel has taken that step [of consulting with the defendant about
a possible Rule 11 challenge], the defendant confirms that he
is not interested in withdrawing the plea, may counsel refrain
from exploring possible arguments related to Rule 11.”
Konczak, 683 F.3d at 349.

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4 No. 23-2790
Even though counsel did not comply with the obligation
to tell us whether he consulted with Larry, we need not reject
the Anders brief here. The plea transcript shows that the dis-
trict court substantially complied with Federal Rule of Crimi-
nal Procedure 11; therefore any potential challenge to the
plea’s validity would be frivolous. Because Larry did not
move in the district court to withdraw his plea, we would re-
view the court’s acceptance of it only for plain error. F ED. R.
C RIM . P. 52(b); see United States v. Collins, 986 F.3d 1029, 1030
(7th Cir. 2021). The court determined that Larry was compe-
tent to enter a plea, and it confirmed that he understood the
nature of the charges against him, the possible penalties, and
the rights he was waiving by pleading guilty, including the
appellate rights he would give up by accepting the plea agree-
ment. F ED. R. CRIM . P. 11(b), (c); United States v. Bridgewater,
995 F.3d 591, 596 (7th Cir. 2021).
Counsel notes two potential errors in the colloquy. First,
the court omitted the warning that any false statements Larry
made under oath could be used against him in a perjury pros-
ecution. F ED. R. C RIM . P. 11(b)(1)(A). But such an omission is
harmless where, as here, there is no current or expected pros-
ecution for perjury for statements made at the plea hearing.
See United States v. Stoller, 827 F.3d 591, 598 (7th Cir. 2016) (af-
firming district court finding that omission of warning about
potential perjury charge was harmless where perjury charge
was not pending or anticipated).
Second, the district court did not explicitly state at the sen-
tencing hearing whether it was accepting or rejecting Larry’s
conditional guilty plea and the binding plea agreement.
See F ED. R. C RIM . P. 11(c)(3)(A). But any error along these
lines was not plain because Rule 11(c)(3)(A) does not require

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No. 23-2790 5
an explicit statement and the sentencing transcript reveals no
ambiguity. See United States v. Brown, 571 F.3d 690, 694–95
(7th Cir. 2009). After calculating Larry’s guidelines range, the
court explained that it would be sentencing Larry to a term of
imprisonment consistent with the negotiated plea agreement.
The court also explained that without the plea agreement,
Larry would likely have received a longer sentence. We are
thus satisfied that Larry could not plausibly argue that the
court plainly erred in accepting the plea.
Counsel then considers whether Larry could challenge his
sentence and correctly concludes that the scope of his appeal
waiver precludes it. An appeal waiver “stands or falls with
the underlying agreement and plea,” United States v. Nulf,
978 F.3d 504, 506 (7th Cir. 2020), and we have already deter-
mined that Larry voluntarily and knowingly pleaded guilty.
And the rare circumstances that would justify not enforcing a
voluntary appeal waiver are not present: The sentence did not
exceed the statutory maximum, and the court did not rely on
any constitutionally impermissible factor when imposing the
sentence. See Oliver v. United States, 951 F.3d 841, 844 (7th Cir.
2020). Because Larry has validly waived all possible chal-
lenges to the sentence and the means of arriving at it, he has
no nonfrivolous challenge to bring on appeal.
Thus, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.

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