United States of America v. Henry E. Underwood

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 1, 2025
Decided May 1, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-2717
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HENRY E. UNDERWOOD,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.
No. 1:20CR77-002
Holly A. Brady,
Chief Judge.
O R D E R
Henry Underwood pleaded guilty to one count of aiding and abetting the
attempt to kill a federal witness, 18 U.S.C. §§ 1512(a)(1)(A), (C), and 2, and was
sentenced to a 360-month term of imprisonment and five years of supervised release.
Despite a broad appeal waiver in his plea agreement, Underwood filed a notice of
appeal. His appointed attorney asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the
nature of the case and addresses the potential issues that an appeal of this kind might
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 3 --

No. 24-2717 Page 2
involve. Because his analysis appears thorough, and Underwood raises no additional
issues to consider under Circuit Rule 51(b), we limit our review to the subjects that
counsel discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Underwood was contracted by Tyshon Powell, a man imprisoned on drug
charges, to shoot a woman who had given the FBI information that led to Powell’s
arrest. Underwood shot the woman three times at point-blank range. She survived and
identified Underwood as the shooter. That identification was corroborated by a gun
found in Underwood’s possession.
A grand jury signed off on a five-count superseding indictment against
Underwood in May 2022. Underwood agreed to plead guilty to Count Two, aiding and
abetting the attempt to kill a federal witness. 18 U.S.C. §§ 1512(a)(1)(A), (C), and 2. The
written plea agreement included an appellate waiver under which Underwood
expressly waived his right “to appeal or to contest [his] conviction and all components
of [his] sentence” on any ground other than a claim of ineffective assistance of counsel.
At a change-of-plea hearing in June 2023, the district court placed Underwood
under oath and conducted a plea colloquy. The court asked Underwood to confirm that
he understood the charges and applicable penalties, his trial rights, the consequences of
pleading guilty, and the role of the Sentencing Guidelines. See F ED. R. C RIM .
P. 11(b)(1)(A)–(N). After finding that Underwood was competent, that the plea was
knowing and voluntary, and that there was an adequate factual basis establishing his
guilt, the court accepted his guilty plea.
Counsel informs us that Underwood wishes to withdraw his guilty plea and first
considers whether Underwood could raise a non-frivolous argument that his plea was
not knowing and voluntary. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir.
2024). We agree with counsel that such a challenge would be frivolous. Underwood did
not move in the district court to withdraw his plea, so our review would be limited to
plain error. United States v. Schaul, 962 F.3d 917, 921 (7th Cir. 2020). The transcript of the
plea colloquy shows that the court substantially complied with the requirements of
Rule 11(b) and thus ensured that the plea was knowing and voluntary. See United States
v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The court, for instance, placed
Underwood under oath before confirming that he understood the charges against him,
the trial rights he was waiving, the consequences of the plea, and the maximum
penalties he faced. See F ED. R. C RIM . P. 11(b)(1)(A)–(N).

-- 2 of 3 --

No. 24-2717 Page 3
Counsel next considers whether Underwood could challenge his sentence and
rightly concludes that the appeal waiver would foreclose any challenge. An appellate
waiver stands or falls with the underlying plea agreement. See, e.g., United States v. Nulf,
978 F.3d 504, 506 (7th Cir. 2020). Because the district court validly accepted
Underwood’s plea, we would enforce the waiver unless an exception applies. Id. And
no exception could apply here: Neither Underwood’s 360-month prison term nor
five-year term of supervised release exceeds the statutory maximum, 18 U.S.C.
§§ 1512(a)(3)(B), 3583(b)(1), and the transcript shows that the court did not consider any
constitutionally impermissible factors at sentencing.
Finally, we note that Underwood has filed two motions for the appointment of
counsel to help him pursue a claim for ineffective assistance of counsel under 28 U.S.C.
§ 2255. We deny those motions. He must file any collateral attack in the district where
he was convicted, Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019), and the norm
would be to seek appointment of counsel after he has filed a § 2255 motion, see United
States v. Von Vader, 58 F.4th 369, 372 (7th Cir. 2023).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 3 of 3 --