United States of America v. Derrick A. Smith Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 17, 2022
Decided June 21, 2022
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 21‐2215
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DERRICK A. SMITH JR.,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.
No. 1:21CR6‐001
Damon R. Leichty,
Judge.
O R D E R
Derrick Smith, Jr. pleaded guilty to possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1), and the district court sentenced him to 180 months in prison—the statutory
minimum sentence under the Armed Career Criminal Act, id. § 924(e)—and five years
of supervised release. Although his plea agreement contains an appeal waiver, Smith
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 brief
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21‐2215 Page 2
explains the nature of the case and raises potential issues that an appeal like this would
be expected to involve. Because her analysis appears thorough, and Smith has not
responded to counsel’s 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).
As officers from the Fort Wayne, Indiana police department tried to apprehend
Smith, who had an active warrant for a parole violation, a handgun fell to the ground.
Smith admitted upon questioning that the weapon had been in his jacket. A single‐
count federal indictment charged him with violating § 922(g)(1) and, because of prior
convictions, § 924(e). Smith pleaded guilty pursuant to a written plea agreement in
which he “expressly waive[d] [his] right to appeal or to contest [his] conviction and all
components of [his] sentence or the manner in which [his] conviction or [his] sentence
was determined or imposed, to any Court on any ground.”
At the change‐of‐plea hearing, the district court placed Smith under oath and
conducted a colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
The court asked Smith if his guilty plea was voluntary and not the result of threats,
promises, or force, which Smith affirmed. The court then discussed, and Smith
confirmed that he understood, the possible penalties that he faced, including the 15‐
year statutory minimum if he qualified for the ACCA enhancement. The court also
reviewed with Smith the rights that he was giving up, including the right to appeal any
component of his conviction or sentence. Smith again confirmed that he understood.
Finally, the court asked Smith to describe the conduct that made him guilty of the
offense, and Smith admitted that he had a “Taurus, a G2” firearm, which was unlawful
for him to possess because of his prior felony convictions. Smith also affirmed that the
government’s recited factual basis was accurate, including that he “received a 13‐year
prison sentence previously for [] burglary convictions.”
In the presentence investigation report, a probation officer calculated a range of
151 to 188 months in prison under the Sentencing Guidelines, based on an offense level
of 30 and a criminal history category V. That range narrowed to 180 to 188 months
because of the 15‐year mandatory minimum sentence applicable to armed career
criminals: Smith had five prior convictions in Indiana for burglary, a “violent felony”
under the ACCA. See U.S.S.G. § 4B1.4(b)(3)(B); 18 U.S.C. § 924(e). Smith objected
because he pleaded guilty to, and was sentenced for, all five burglaries at the same time,
although he committed them on different dates. But he conceded that precedent
contradicted his argument. See United States v. Elliott, 703 F.3d 378, 384 (7th Cir. 2012)
(three burglaries committed over five days were separate convictions under the ACCA).

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No. 21‐2215 Page 3
At the sentencing hearing, the government submitted records establishing that
Smith’s five prior burglaries had occurred at five separate residences on four separate
dates. The district court, citing Elliott, see id., overruled Smith’s objection to his
classification as an armed career criminal. The court then sentenced Smith to a term of
180 months in prison and five years of supervised release, each within the respective
guidelines ranges of 180 to 188 months’ imprisonment and two to five years’ supervised
release. See U.S.S.G. §§ 5G1.1(c)(2); 5D1.2(a)(1).
Counsel first informs us that Smith wishes to challenge his guilty plea, see
United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012), but she rightly concludes that
such a challenge would be frivolous. Because Smith did not move to withdraw his plea
in the district court, we would review only for plain error, United States v. Davenport,
719 F.3d 616, 618 (7th Cir. 2013), and the record reflects no such error here. Smith’s
sworn statements at the plea colloquy are presumed true. See United States v. Graf,
827 F.3d 581, 584 (7th Cir. 2016). And, as counsel notes, the record shows that the court
accepted Smith’s plea only after conducting a colloquy that complied with Rule 11. See
id. It determined that Smith was voluntarily changing his plea and that he understood
the charges, the rights he was waiving, the maximum penalties for his offense, and the
role of the Sentencing Guidelines. See FED. R. C RIM. P. 11(b)(1). The court also ensured
that the factual basis for the plea was adequate. See FED. R. CRIM. P. 11(b)(2)–(3).
Counsel next explains that, with no means of withdrawing the guilty plea, Smith
is bound by his plea agreement, which forecloses any other appellate arguments. We
agree. An appeal waiver “stands or falls with the underlying agreement and plea,” and
because Smith cannot raise a non‐frivolous challenge to the plea agreement, the appeal
waiver applies unless it is unenforceable. United States v. Nulf, 978 F.3d 504, 506 (7th Cir.
2020). Counsel correctly deems frivolous any argument that an exception to the appeal
waiver could apply. See id. Smith’s 180‐month sentence is less than the applicable
statutory maximum sentence of life, 18 U.S.C. § 924(e), and his five‐year term of
supervised‐release does not exceed the five‐year statutory maximum. See id.
§ 3583(b)(1). Further, the record shows that the judge did not consider any
constitutionally impermissible factor at sentencing. See Nulf, 978 F.3d at 506. Therefore,
as counsel correctly concludes, the appeal waiver forecloses any possible challenge to
the conviction or sentence, including Smith’s contention that he did not qualify for the
ACCA enhancement. See United States v. Worthen, 842 F.3d 552, 555 (7th Cir. 2016).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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