United States of America v. Armon R. Simpson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2024
Decided January 19, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2376
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARMON R. SIMPSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:21-CR-30133-DWD-2
David W. Dugan,
Judge.
O R D E R
Armon Simpson pleaded guilty to conspiracy to commit carjacking, carjacking,
and use of a firearm during a crime of violence. The district judge sentenced him to 208
months’ imprisonment and 3 years’ supervised release. Despite the broad appeal
waiver in his plea agreement, Simpson filed a notice of appeal. His appointed counsel
contends 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
issues that an appeal of this kind might be expected to involve. Simpson did not
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2376 Page 2
respond to counsel’s motion. See C IR . R. 51(b). Because counsel’s analysis appears
thorough, we limit our review to the subjects that he discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal.
Simpson used a firearm to steal motor vehicles three times in July and August
2021. A grand jury indicted him on three counts: conspiracy to commit carjacking,
18 U.S.C. § 371, carjacking, id. § 2119, and use of a firearm during a crime of violence, id.
§ 924(c). The latter two charges pertained to the same carjacking on August 5, 2021.
Simpson eventually entered a plea deal in which he agreed to plead guilty to all three
counts. In the written agreement, Simpson admitted that he conspired with others to
commit numerous carjackings in Illinois and Missouri. As part of the plea agreement,
the government agreed to forgo additional carjacking and firearms charges based on the
theft that occurred in July 2021.
The plea agreement also contained a broad appeal waiver. Simpson waived “the
right to seek modification of, or contest any aspect of, the conviction or sentence in any
type of proceeding, including the manner in which the sentence was determined or
imposed.” The waiver expressly included challenges to “the constitutionality of the
statute(s) to which Defendant is pleading guilty or under which Defendant is
sentenced” and arguments that “the conduct to which Defendant has admitted does not
fall within the scope of such statute(s).” The plea agreement contained a narrow
exception: if the judge imposed more than 30 years’ imprisonment, then Simpson is
permitted to challenge the substantive reasonableness of the prison sentence.
At the change-of-plea hearing, the judge conducted the plea colloquy, and found
that a sufficient factual basis existed for each offense. After Simpson confirmed under
oath that he understood the charge, the penalties, and the rights he was waiving, and
affirmed that his plea was voluntary, not the product of coercion or given in exchange
for a promise, the judge accepted Simpson’s guilty pleas on each of the three counts.
Before sentencing, the probation office circulated a presentence investigation
report (PSR). Based on a total offense level of 29 and a criminal history category of I, the
PSR set the imprisonment range under the Sentencing Guidelines at 87 months to 108
months, but because the § 924(c) conviction carries a mandatory consecutive sentence of
84 months, the effective guidelines range was 171 to 192 months. Neither side objected
to these calculations. In his sentencing memorandum, Simpson requested a sentence of
171 months, whereas the government requested a sentence of 360 months (30 years)
based on violent related conduct.

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No. 23-2376 Page 3
At the sentencing hearing, the district judge heard the parties’ arguments for
their requested sentences. After discussing the sentencing factors under 18 U.S.C.
§ 3553(a), the judge imposed concurrent 60- and 100-month prison terms on the
conspiracy and carjacking counts and a consecutive 108-month prison term for the
§ 924(c) count, for a total sentence of 208 months. The judge also imposed concurrent,
3-year terms of supervised release on each count.
In reviewing potential issues for appeal, counsel contemplates challenging the
appeal waiver. An appeal waiver stands or falls with the plea agreement of which it is
part. United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020). Therefore, if Simpson
knowingly and voluntarily pleaded guilty, the waiver will stand.
The record shows, and counsel correctly concludes, that any challenge to the
guilty plea would be frivolous. Simpson did not move to withdraw his plea in the
district court, so our review would be for plain error. See United States v. Davenport, 719
F.3d 616, 618 (7th Cir. 2013). And a review of the transcript of the change-of-plea
hearing reflects that the judge substantially complied with Rule 11(b) of the Federal
Rules of Criminal Procedure and ensured that the guilty plea was knowing and
voluntary.
The judge explained the nature of the charges, informed Simpson of the potential
penalties, and determined the factual basis for his plea before accepting it. The judge
deviated from Rule 11 in two ways. First, he did not advise Simpson that his sworn
statements could be used against him in a prosecution for perjury if untrue. See Fed. R.
Crim. P. 11(b)(1)(A). The judge also did not discuss the court’s authority to order
restitution. See Fed. R. Crim. P. 11(b)(1)(K). But these omissions were harmless because
Simpson confirmed under oath that he understood and accepted the written plea
agreement, which contained the omitted information. See United States v. Adams, 746
F.3d 734, 746–47 (7th Cir. 2014). Further, the judge ordered no restitution, and there is
no perjury prosecution. Therefore, any plain-error challenge to the validity of the guilty
plea would be pointless. See United States v. Collins, 796 F.3d 829, 835 (7th Cir. 2015).
As counsel says, because Simpson knowingly and voluntarily waived his
appellate rights in express and unambiguous terms, we will enforce the waiver unless
some exception applies. Nulf, 978 F.3d at 506. None does. The sentences on each count
are below the applicable statutory maximums, and there is no evidence that the judge
relied on unconstitutional considerations, such as race, in sentencing Simpson.
United States v. Adkins, 743 F.3d 176, 192 (7th Cir. 2014). With no applicable exception to

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No. 23-2376 Page 4
enforceability, Simpson’s waiver of his right to appeal on any ground if the judge
sentenced him to less than 30 years (or 360 months) in prison renders frivolous any
challenge to the sentence.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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