United States of America v. Tyrone Perry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 12, 2021
Decided April 12, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2340
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRONE PERRY,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
Hammond Division.
No. 2:19CR68-001
Philip P. Simon,
Judge.
O R D E R
Tyrone Perry sold cocaine and heroin to a confidential informant on four
separate occasions. A grand jury charged him with four counts of distributing a
controlled substance, 21 U.S.C. § 841(a)(1), and one count of possessing a firearm as a
felon, 18 U.S.C. § 922(g)(1). Perry pleaded guilty to one count of distributing heroin and
cocaine, and his plea agreement included a broad waiver of his right to appeal his
conviction and sentence “on any ground” other than ineffective assistance of counsel.
The district court sentenced Perry, a career offender, to a below-guidelines sentence of
108 months’ imprisonment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2340 Page 2
Perry appealed, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Perry has not
responded to counsel’s motion. See C IR . R. 51(b). Counsel’s brief explains the nature of
the case and addresses the potential issues that an appeal of this kind might involve.
Because the analysis appears thorough, we limit our review to the subjects that she
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel confirmed that Perry wishes to contest his guilty plea on appeal, so she
first considers whether he could raise any nonfrivolous argument that he did not enter
the plea knowingly and voluntarily. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012). Because Perry did not move to withdraw his guilty plea in the district
court, we would review any appellate challenge to its validity for plain error.
See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). Counsel concludes, and
we agree, that the district court complied with the requirements of Federal Rule of
Criminal Procedure 11 during the plea colloquy, so any challenge on these grounds
would be pointless. Of particular relevance here, the court ensured at length that Perry
understood that a defendant has a right to an appeal, and that he was expressly waiving
that right in his plea agreement. See United States v. Gonzalez, 765 F.3d 732, 741 (7th Cir.
2014).
Counsel next considers whether Perry could contest his sentence, but correctly
concludes that his appeal waiver would foreclose any challenge. Because an “appeal
waiver stands or falls with the guilty plea,” our conclusion that it would be frivolous to
challenge the plea dooms a challenge to the validity of the waiver. See id. And counsel
rightly rejects any argument that an exception to the appeal waiver’s enforceability
could apply. See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). As counsel
explains, Perry’s 108-month sentence falls far below the statutory maximum of 20 years,
see 21 U.S.C. § 841(b)(1)(C), and the record confirms that the district court did not rely
on a constitutionally impermissible factor such as race when issuing the sentence.
See Campbell, 813 F.3d at 1018. Therefore, in a direct appeal, we could not entertain any
argument, including sentencing challenges, other than the one specifically exempted
from the appeal waiver: ineffective assistance of counsel.
On that issue, counsel explains that Perry wishes to argue that his trial attorney
was ineffective for failing to object to information in his presentence investigation
report and for giving erroneous advice about his plea hearing. But, as counsel points
out, this claim would require evidence outside the record and therefore should be
brought under 28 U.S.C. § 2255 rather than through a direct appeal. See Massaro v.

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No. 20-2340 Page 3
United States, 538 U.S. 500, 508–09 (2003); United States v. Cates, 950 F.3d 453, 457
(7th Cir. 2020).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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