United States of America v. James D. McCreary

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 29, 2025
Decided October 1, 2025
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-3029
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES D. MCCREARY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.
No. 1:21CR43-001
Holly A. Brady,
Chief Judge.
O R D E R
James McCreary pleaded guilty to possession of drugs and being a felon in
possession of a firearm. Despite a broad appellate waiver in his plea agreement,
McCreary filed a notice of appeal. His appointed attorney asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Counsel’s brief explains the nature of the case and addresses the potential issues that an
appeal of this kind might involve. Because counsel’s analysis appears thorough, we
limit our review to the subjects that counsel discusses, in addition to the arguments that
McCreary proposes in his response under Circuit Rule 51(b). See United States v. Bey,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-3029 Page 2
748 F.3d 774, 776 (7th Cir. 2014). We conclude that McCreary has no arguable issues on
appeal and thus grant the motion and dismiss the appeal.
Following a joint state and federal investigation into suspected drug suppliers,
McCreary was charged with possessing cocaine with intent to distribute, see 21 U.S.C.
§ 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C.
§ 924(c)(1)(A), and being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). In
accordance with a plea agreement, McCreary entered a guilty plea to the drug
possession and felon-in-possession charges, and the government moved to dismiss the
charge for possessing a firearm in furtherance of a drug trafficking crime.
At McCreary’s change-of-plea hearing, he confirmed that he understood the plea
agreement and that the agreement was not the result of coercion or other promises.
See F ED. R. C RIM . P. 11(b)(1)(C)–(N). Additionally, the magistrate judge asked whether
McCreary understood the appellate waiver in the plea agreement, and McCreary
responded that he did. McCreary also confirmed under oath that he understood the
charges and applicable penalties, his trial rights, and the role of the Sentencing
Guidelines. After hearing the factual basis for the plea and finding it sufficient, the
magistrate judge determined that the plea should be accepted. The district judge later
accepted the magistrate judge’s recommendation to accept McCreary’s guilty plea.
The United States Probation Office prepared a presentence investigation report
(PSR) that, after a three-level reduction for acceptance of responsibility, calculated a
total adjusted offense level of 34 and a criminal history category of VI, yielding a
guidelines range of 262 to 327 months’ imprisonment. See U.S.S.G. Ch. 5, Pt. A. The PSR
also concluded that McCreary was a career offender under U.S.S.G. § 4B1.1(a) because
he had two prior felony convictions in Indiana for crimes of violence—robbery causing
bodily injury and battery resulting in bodily injury.
McCreary objected to the PSR’s determination that he qualified as a career
offender. Relying on Flores v. Ashcroft, 350 F.3d 666, 669–70 (7th Cir. 2003), he argued
that his prior conviction for battery resulting in bodily injury was not a crime of
violence because Indiana law does not require proof of violent physical force to convict
for battery resulting in bodily injury. See I ND. C ODE 35-42-2-1(d)(1). The court overruled
his objection because, as McCreary conceded, this court clarified in United States v. Love,
7 F.4th 674, 680–81 (7th Cir. 2021), that any touching that resulted in bodily injury was
capable of causing bodily injury and thus constituted a crime of violence.

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No. 24-3029 Page 3
At the sentencing hearing, the court overruled McCreary’s objections and
adopted the PSR’s guidelines calculations. McCreary again objected to the career
offender designation, arguing that the predicate felony battery charge would have been
a misdemeanor if it had not been enhanced based on a prior conviction. The
government argued that McCreary’s predicate felony battery charge still required proof
of bodily injury when it was enhanced from a misdemeanor to a felony. The court
overruled McCreary’s objection, relying on the rationale in its previous order. McCreary
had no objections to the proposed supervised release conditions and waived oral
pronouncement. The court then granted the government’s motion to dismiss the charge
for possession of a firearm in furtherance of a drug trafficking crime.
Next, McCreary’s children and mother addressed the court, discussing their
relationship with him and how he had changed for the better. The government then
argued for a 327-month sentence because of McCreary’s history of criminal offenses, the
number of chances he was given by the state of Indiana to stop his criminal activity, and
the seriousness of armed drug trafficking. McCreary’s counsel argued for a lower
sentence because of McCreary’s family support, the positive changes he had made
while incarcerated, and how the Guidelines did not control criminal sentences. In his
allocution, McCreary promised to do better, emphasized the family support he would
have upon release, expressed how he wanted to be there for his family, described how
he had lost his five-year-old son while incarcerated, argued that many of his prior
convictions were related to a “toxic relationship,” and asked for mercy.
The district court acknowledged McCreary’s family support and then considered
his extensive, serious, and violent convictions. The court sentenced McCreary to 262
months’ imprisonment for the drug conviction and a concurrent 120 months for the
firearm conviction. The court stated that it would have imposed the same sentence even
if McCreary was not a career offender. The court also imposed an eight-year term of
supervised release for the drug conviction to run concurrently with a three-year term of
supervised release for the firearm conviction.
To begin, counsel informs us that McCreary does not wish to challenge his guilty
plea, so counsel properly refrains from discussing 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, 671 (7th Cir. 2002).
Counsel correctly discerns that any challenge to McCreary’s sentence would be
fruitless because his plea agreement waived his right to contest “all components of [his]

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No. 24-3029 Page 4
sentence” and “the manner in which … [his] sentence was determined or imposed”
other than a claim of ineffective assistance of counsel. When we conclude that a
defendant entered into a plea agreement knowingly and voluntarily, we enforce an
appellate waiver contained in that agreement—unless the sentence exceeds the
statutory maximum or the record suggests that the court relied on a constitutionally
impermissible factor such as race. See United States v. Nulf, 978 F.3d 504, 506 (7th Cir.
2020). Because, as counsel rightly concludes, nothing in the record suggests either
exception applies, McCreary’s appellate waiver precludes any challenge to his sentence
other than ineffective assistance of counsel.
McCreary proposes arguing that his counsel was ineffective during plea
negotiations because his counsel ignored documents demonstrating that one of
McCreary’s predicate felony offenses was eligible for conversion to a misdemeanor
under I ND. C ODE § 35-38-1-1.5. McCreary has appended documents to his Circuit Rule
51(b) response that suggest it now has been converted. He suggests that in light of this
conversion, he now lacks the predicate felony convictions to be considered a career
offender. See § 4B1.1(a). But claims of ineffective assistance of counsel—which are
exempt from McCreary’s appellate waiver—should be reserved for collateral review.
See United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020). Regardless, any error in the
PSR’s career offender designation would be harmless because the court stated that even
if McCreary was not a career offender it would have imposed the same sentence based
on its evaluation of the factors in § 3553(a). See United States v. Carter, 961 F.3d 953, 959–
60 (7th Cir. 2020).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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