United States of America v. Chad M. Fulk

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2022
Decided February 4, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2308
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHAD M. FULK,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
Fort Wayne Division.
No. 1:18CR80-001
Holly A. Brady,
Judge.
O R D E R
Chad Fulk was sentenced to 262 months’ imprisonment after he pleaded guilty
to possessing more than 50 grams of methamphetamine with intent to distribute it.
See 21 U.S.C. § 841(a)(1). Although his plea contained a broad appeal waiver, Fulk has
nonetheless appealed. His appointed counsel moves to withdraw on the ground that
the appeal is frivolous, see Anders v. California, 386 U.S. 738 (1967). Fulk opposes
counsel’s motion. See C IR . R. 51(b). Because the analysis in counsel’s brief appears
thorough, we limit our review to the issues he identified, plus the issues Fulk raises in
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2308 Page 2
his response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In his brief, counsel states that he consulted with Fulk and confirmed that Fulk
does not wish to withdraw his guilty plea. Even so, Fulk equivocates in his Rule 51(b)
response. He appears to challenge his plea by noting that he “did not tell [his counsel]
that [he] knowingly and willingly entered into the plea agreement.” He then confirms
counsel’s representation that he does “not want to lose [his] acceptance of responsibility
reduction.” Because Fulk may not challenge the voluntariness of his plea without
risking his three-point sentence reduction, see U.S.S.G. § 3E1.1(a), counsel reasonably
declined to discuss a challenge to Fulk’s plea. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). But even if
we construe Fulk’s 51(b) response as a request to withdraw his plea, we have reviewed
the plea colloquy for compliance with Rule 11 of the Federal Rules of Criminal
Procedure and see no plain error by the district court. See United States v. Davenport,
719 F.3d 616, 618 (7th Cir. 2013).
Counsel next considers whether Fulk could attack his sentence but correctly
concludes that his appeal waiver precludes any challenge. An appeal waiver stands or
falls with the underlying guilty plea. See United States v. Nulf, 978 F.3d 504, 508
(7th Cir. 2020). In his plea agreement, Fulk expressly waived his right to appeal his
“conviction and all components of [his] sentence or the manner in which [his]
conviction or [his] sentence was determined or imposed, to any Court on any ground
other than a claim of ineffective assistance of counsel.” And counsel rightly rejects any
argument that an exception to the appeal waiver could apply. Fulk’s 262-month
sentence was below the maximum sentence of life, see 18 U.S.C. § 841(b)(1)(A)(viii), and
the district court did not rely on any constitutionally impermissible factors. See United
States v. Johnson, 934 F.3d 716, 719–20 (7th Cir. 2019).
Finally, counsel considers whether Fulk’s appeal waiver allows him to raise an
ineffective assistance of counsel claim. In his 51(b) response, Fulk asserts that trial
counsel failed to object to inaccuracies in his presentence report and mistakenly told
him that he faced a lower maximum sentence than was calculated. Although the plea
agreement preserves Fulk’s right to challenge counsel’s performance, claims of
ineffective assistance are best raised on collateral review, where a more complete record
can be developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States
v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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