United States of America v. DOMINIQUE CORTEZ McCLENDON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2023
Decided March 15, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-1524
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOMINIQUE CORTEZ McCLENDON,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:19CR00003-001
James R. Sweeney, II,
Judge.
O R D E R
Dominique McClendon was sentenced to 168 months’ imprisonment and 5 years’
supervised release after pleading guilty to possession with intent to distribute 50 grams
or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Although his plea
agreement contains a broad appellate waiver, McClendon filed a notice of appeal. His
appointed counsel asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s analysis appears thorough.
Because the brief explains the nature of the case and addresses the issues that a case of
this kind might be expected to involve, and McClendon did not propose others, see C IR .
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1524 Page 2
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).
Police officers pulled over McClendon for traffic violations in Indianapolis,
Indiana, and recovered methamphetamine and a loaded handgun from his minivan.
Before stopping the car, one officer had observed McClendon looking behind him and
moving his right arm suspiciously. While that officer ran the records check after the
stop, a second officer walked around the car, and through its window, spotted a large,
clear plastic bag on a seat. He suspected that the bag contained methamphetamine
because it held a crystalline substance that glinted in the sunlight like meth would.
McClendon was arrested and the car searched. The police found the gun and later
determined that the recovered substance was indeed methamphetamine.
McClendon was charged with two counts: one under 21 U.S.C. § 841(a)(1) (for
possessing methamphetamine) and the other under 18 U.S.C. § 922(g)(1) (for possessing
a firearm as a felon). He moved to suppress the evidence from the warrantless search of
his car. The district court denied the motion, ruling that the search did not violate the
Fourth Amendment. McClendon then pleaded guilty to the first count under a written
plea agreement in which he waived his right to appeal. The government in turn agreed
to dismiss the firearm count.
After McClendon pleaded guilty, the probation office submitted a presentence
investigation report. The report proposed that under the Sentencing Guidelines,
McClendon’s total offense level was 31 and his criminal-history score was 12 (Category
V), yielding a sentencing range of 168 to 210 months in prison. McClendon did not
object to these calculations, and the government recommended a sentence of 168
months, the bottom of the range. The district court weighed the sentencing factors
under 18 U.S.C. § 3553(a), including the nature and circumstances of the offense (serious
drug-related criminal conduct that could have resulted in grave injury) and
McClendon’s personal history and characteristics (8 prior criminal convictions, some
involving handguns and drugs, and 14 misconduct reports in prison). After considering
these factors, the district court imposed a sentence of 168 months. The court also set a
term of five years’ supervised release. McClendon did not object to the term or
conditions of supervised release.
Counsel submits that she consulted with McClendon and confirmed that he
wishes to challenge only his sentence, not his conviction. Counsel thus properly refrains
from discussing the validity of McClendon’s guilty plea. See United States v. Konczak,

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No. 22-1524 Page 3
683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir.
2002).
Counsel addresses whether McClendon could raise nonfrivolous arguments on
appeal about his sentence. After considering the scope of McClendon’s appeal waiver,
counsel correctly concludes that that provision in his plea agreement precludes a
challenge to his sentence. His appeal waiver “stands or falls with the underlying
agreement and plea,” United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020), and at
McClendon’s plea hearing the district court thoroughly reviewed the plea agreement
with him, including his waiver of an appeal of his sentence. Because McClendon does
not wish to challenge his plea, we must enforce his waiver.
Counsel appropriately rejects any argument that an exception to the appellate
waiver could apply. McClendon’s 168-month sentence is less than the applicable
statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A), and the district court did
not consider any constitutionally impermissible factor at sentencing. See Nulf, 978 F.3d
at 506. Moreover, the waiver covered “the length and conditions” of supervised release,
thus also barring appellate review of those terms.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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