United States of America v. BRIAN McGEE

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 31, 2024
Decided January 31, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 22-3071
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN McGEE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:21CR00193-012
James Patrick Hanlon,
Judge.
O R D E R
Brian McGee pleaded guilty to conspiring to distribute 400 grams or more of
fentanyl and a substance containing methamphetamine, and the district court sentenced
him to 10 years’ imprisonment and 5 years of supervised release. Despite a broad
appeal waiver in his plea agreement, McGee now appeals his sentence. His appointed
counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738 (1967). In her brief, counsel explains the nature of the case and
addresses issues that an appeal of this kind would typically involve. Because counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-3071 Page 2
analysis appears thorough, and McGee did not respond to the 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). We grant the motion and dismiss the appeal.
As part of a drug trafficking organization in Indiana, McGee distributed fentanyl
and methamphetamine. Months of surveillance captured McGee receiving these drugs
for redistribution, and federal agents found guns, drugs, and drug paraphernalia in
McGee’s home. In an indictment against several defendants, McGee was charged with
conspiracy to distribute substances containing fentanyl and methamphetamine.
21 U.S.C. §§ 841(a)(1), 846. A grand jury later issued a superseding indictment, adding a
charge of possession of methamphetamine with intent to distribute against McGee.
21 U.S.C. § 841(a)(1).
McGee pleaded guilty to the conspiracy charge in Count One of the original
indictment. In his plea agreement, McGee expressly waived the right to challenge his
conviction and sentence “on any ground” except ineffective assistance of counsel,
retroactive changes to his range under the Sentencing Guidelines, or compassionate
release. The waiver otherwise extends to “all provisions of the guilty plea and sentence
imposed.” In exchange, the government agreed to recommend a sentence at the low end
of the Guidelines range and, in what appears to be a clerical error, to dismiss “Count
Three of the Indictment.” (McGee was not charged in Count Three.) After McGee
entered his plea, the government dismissed the superseding indictment, which
contained the remaining methamphetamine-possession charge. The district court
accepted the plea. Four months later, the court—citing McGee’s history of addiction, his
remorse, and his lack of criminal history—sentenced him to the statutory minimum of
10 years’ imprisonment and 5 years’ supervised release. See 21 U.S.C. § 841(b)(1)(A).
In her brief, counsel first tells us that she advised McGee about the risks and
benefits of challenging his guilty plea, and she reports that McGee wishes to challenge
only his sentence. Counsel therefore properly forgoes discussing whether the plea was
valid. 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 next considers whether McGee could raise a nonfrivolous challenge to
his sentence but rightly concludes that the appeal waiver would foreclose any such
challenge. An appeal waiver “stands or falls” with the underlying plea, United States v.
Nulf, 978 F.3d 504, 506 (7th Cir. 2020), and because McGee did not move to withdraw
his plea in the district court, our review would be for plain error, United States v.

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No. 22-3071 Page 3
Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The record shows no such error: The district
court substantially complied with Rule 11(b) of the Federal Rules of Criminal Procedure
to ensure that McGee’s plea was knowing and voluntary.
And counsel rightly rejects arguing that any exception to the appeal waiver
could apply. McGee’s sentence did not exceed the statutory maximum, see 21 U.S.C.
§ 841(b)(1)(A), and the district court did not consider any constitutionally impermissible
factors at sentencing. See Nulf, 978 F.3d at 506. Counsel also rightly acknowledges that
the clerical error in the appeal waiver (mistakenly referring to the dismissal of “Count
Three”) does not render the plea invalid. Even though the agreement mislabeled the
charge the government agreed to dismiss, McGee obtained dismissal of the only other
charge he faced when the government dismissed the superseding indictment.
We GRANT counsel’s motion and DISMISS the appeal.

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