United States of America v. Martez Cunningham

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 16, 2023
Decided October 17, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-3103
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTEZ CUNNINGHAM,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 19-CR-20004-001
Michael M. Mihm,
Judge.
O R D E R
Police arrested Martez Cunningham after a traffic stop and search that turned up
methamphetamine and a pistol. Cunningham later pleaded guilty to unlawful
possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and was sentenced below the
guideline range to 112 months in prison and three years of supervised release. Although
his plea agreement contains a broad appellate waiver, Cunningham 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 (1967). Counsel’s brief explains the
nature of the case and addresses the issues that an appeal of this kind might be
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-3103 Page 2
expected to involve. Cunningham did not respond to the motion. See C IR . R. 51(b).
Because counsel’s 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 first states that Cunningham does not wish to withdraw his guilty plea,
but she does not expressly state that she consulted with Cunningham and “provide[d]
advice about the risks and benefits of [this] proposed course of action.” United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); see also United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). Counsel also evaluates whether Cunningham’s guilty plea was knowing
and voluntary. But counsel “should not present (or even explore in an Anders
submission) a Rule 11 argument unless … the defendant really wants to withdraw the
guilty plea.” Konczak, 683 F.3d at 349 (internal quotes omitted). Nevertheless, we need
not reject the Anders submission because we have reviewed the plea colloquy ourselves
and conclude that the district court substantially complied with Rule 11 of the Federal
Rules of Criminal Procedure. See id.
Counsel next considers whether Cunningham could challenge his sentence, but
correctly concludes that his appeal waiver precludes such a challenge. An appeal
waiver “stands or falls with the underlying agreement and plea.” United States v. Nulf,
978 F.3d 504, 506 (7th Cir. 2020). In his plea agreement, Cunningham waived “all rights
to appeal and/or collaterally attack his conviction and sentence,” including the term and
conditions of supervised release. Since Cunningham does not seek to withdraw his
guilty plea, we would enforce the appellate waiver. See id. Additionally, no exception to
the waiver could apply: Cunningham’s 112-month sentence fell within the statutory
maximum of 10 years, and nothing in the record shows that the district court
considered any constitutionally impermissible factors at sentencing. See id. Moreover,
the waiver covers the term and conditions of supervised release, which are also
consistent with applicable statutory limits.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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