United States of America v. Oh Min

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. 23-1232
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OH MIN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
Fort Wayne Division.
No. 1:22CR17-001
Holly A. Brady,
Chief Judge.
O R D E R
Oh Min pleaded guilty to two counts of possession with intent to distribute a
controlled substance, see 21 U.S.C. § 841(a)(1), and one count of possession of a firearm
in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c). The district court
sentenced him to 156 months’ imprisonment and three years’ supervised release.
Although his plea agreement contained a broad appeal waiver, Oh Min filed a notice of
appeal. His appointed counsel asserts that the appeal is frivolous and moves to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1232 Page 2
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the
nature of the appeal and addresses issues that an appeal like this might be expected to
involve. Because counsel’s analysis appears thorough, and Oh Min did not respond to
his motion, see C IR . 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).
Counsel first considers whether Oh Min could challenge his guilty plea. But
counsel does not tell us, as he should, whether he consulted with Oh Min and provided
advice about the risks and benefits of challenging the plea. See United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel’s oversight is harmless, however, because any challenge to the guilty plea
would be frivolous. The transcript of the plea colloquy confirms that the district court
substantially complied with Rule 11 of the Federal Rules of Criminal Procedure. The
court determined that Oh Min understood the charges against him, the trial and appeal
rights he was waiving, the maximum penalties he faced, and the role of the Sentencing
Guidelines. See FED. R. C RIM. P. 11(b)(1). The court also ensured that Oh Min’s plea was
voluntary and supported by an adequate factual basis. See FED. R. C RIM. P. 11(b)(2)–(3).
Counsel next considers whether Oh Min could challenge his sentence but rightly
concludes that his appeal waiver would foreclose any challenge. Because an appeal
waiver “stands or falls” with the underlying guilty plea, United States v. Nulf, 978 F.3d
504, 506 (7th Cir. 2020), Oh Min’s waiver is enforceable. In his plea agreement, he
expressly waived his right to appeal or to contest his conviction and sentence “on any
ground other than ineffective assistance of counsel.” His waiver extends to “all
components of [his] sentence or the manner in which [his] conviction or [his] sentence
was determined or imposed.” And counsel correctly rejects any argument that an
exception to the appeal waiver could apply: Oh Min’s 156-month prison sentence and
three-year term of supervised release do not exceed the statutory maximums,
see 18 U.S.C. §§ 924(c), 3559(a)(1), 3583(b)(1), and the district court did not consider any
constitutionally impermissible factors at sentencing. See Nulf, 978 F.3d at 506.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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