United States of America v. Troy Kidwell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 17, 2022
Decided October 17, 2022
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1299
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TROY KIDWELL,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern District
of Indiana, Hammond Division.
No. 2:20-cr-129-001
Philip P. Simon,
Judge.
O R D E R
Troy Kidwell pleaded guilty to attempted enticement of a minor, 18 U.S.C.
§ 2422(b), receipt of child pornography, id. § 2252(a)(2), (b), possession of child
pornography, id. § 2252(a)(4)(B), (b)(2), and distribution of child pornography, id.
§ 2252(a)(2), (b). In accordance with his plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C), he was sentenced to 25 years in prison followed by 15 years of
supervised release. The court also imposed financial penalties and ordered Kidwell to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1299 Page 2
pay special assessments, as well as restitution to his minor victims. Although his plea
agreement contained a broad appeal waiver, Kidwell filed a notice of appeal. Kidwell’s
appointed counsel asserts that the appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). We agree with counsel and therefore grant his
motion to withdraw and dismiss the appeal.
Counsel’s brief explains the nature of the case and addresses potential issues that
an appeal of this kind might involve. Because the analysis appears thorough, we limit
our review to the subjects that counsel discusses and those that Kidwell raises in
response. See C IR . R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first addresses whether Kidwell could challenge his guilty plea. Counsel
does not say whether Kidwell wishes to challenge the validity of the 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 Kidwell’s response makes it clear that he does.
Because Kidwell did not move to withdraw his plea in the district court, we would
review challenges to its validity only for plain error. See United States v. Schaul, 962 F.3d
917, 921 (7th Cir. 2020). And such a challenge would be frivolous. The record shows that
the district court substantially complied with Rule 11 of the Federal Rules of Criminal
Procedure. United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The court
confirmed that Kidwell read and understood his plea agreement, which explained the
trial and broad appeal rights he was forsaking, the maximum penalties for the offenses,
and the role of the Sentencing Guidelines. See F ED. R. C RIM . P. 11(b)(1) . The court did not
apprise Kidwell of his right to a jury trial, but that oversight would not constitute plain
error because the written plea agreement acknowledged Kidwell’s understanding that
he was waiving his right to a jury trial. See Davenport, 719 F.3d at 618. Further, Kidwell
admitted to the offense conduct in the plea agreement and the change-of-plea hearing,
so the omission does not render Kidwell’s conviction unjust. Id.
In his Circuit Rule 51(b) response, Kidwell raises two related arguments. First, he
challenges the voluntariness of his plea, asserting that he did not understand the plea
agreement when he signed it because he has a learning disability. But Kidwell swore at
the change-of-plea hearing that he did fully understand the plea agreement, and there is
no mention of his learning disability in the record. And a defendant has “no chance of
success on appeal” if his arguments contradict his sworn statements during the plea
hearing. United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999).

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No. 22-1299 Page 3
Second, Kidwell asserts that his guilty plea was not supported by an adequate
factual basis. He argues, for instance, that he did not know about the illegal images on
his phone and that one of his minor victims had lied about her age. But this argument
runs into the same problem as his first: Kidwell swore in the plea agreement and at his
hearing that the facts presented by the prosecution were true. Any argument
contradicting his statements under oath would also be frivolous. See id.
Next, counsel considers whether Kidwell could appeal his sentence and correctly
concludes that any such challenge would be precluded by his broad appeal waiver.
Kidwell waived the right to appeal “all components of [his] sentence or the manner in
which … [it] was determined or imposed.” An appeal waiver “stands or falls” with the
underlying guilty plea, United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020), and
Kidwell lacks any sound basis for challenging his plea. Counsel also appropriately
rejects any argument that an exception to the appeal waiver could apply: Kidwell’s
25-year sentence did not exceed the statutory maximum, and the court did not consider
any constitutionally impermissible factors at sentencing. See id. at 507.
Counsel then addresses whether Kidwell could challenge the court-ordered
restitution and special assessments and correctly determines that such a challenge
would be frivolous. The special assessments were required by statute, 18 U.S.C. § 3013,
and the restitution amount was jointly stipulated to by the government and Kidwell.
Finally, Kidwell asserts that trial counsel rendered ineffective assistance by
inadequately explaining the plea agreement to him and failing to assert all available
defenses. But such claims of ineffective assistance are best raised on collateral review,
where a 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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