Judges: Per Curiam
Filed: Jul. 21, 2005
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted July 21, 2005 Decided July 21, 2005 Before Hon. WILLIAM J. BAUER, Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge Hon. DIANE S. SYKES, Circuit Judge No. 05-1212 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, Hammond Division v. No. 3:02 CR 116-03 EDWARD JOHNSON, Defendan
Summary: UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted July 21, 2005 Decided July 21, 2005 Before Hon. WILLIAM J. BAUER, Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge Hon. DIANE S. SYKES, Circuit Judge No. 05-1212 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, Hammond Division v. No. 3:02 CR 116-03 EDWARD JOHNSON, Defendant..
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UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 21, 2005
Decided July 21, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1212
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Hammond Division
v.
No. 3:02 CR 116-03
EDWARD JOHNSON,
Defendant-Appellant. Rudy Lozano,
Judge.
ORDER
Edward Johnson conspired with four others to rob a branch of the First State
Bank of Porter near Michigan City, Indiana. The robbery did not proceed according
to plan, and one of Johnson’s accomplices, Odell Corley, killed two tellers and
seriously wounded a security guard. Johnson pleaded guilty to two counts of bank
robbery resulting in death, 18 U.S.C. § 2113(e), and testified against Corley, who
was ultimately convicted and sentenced to death. The plea agreement includes a
waiver of Johnson’s right to appeal his sentences. In recognition of Johnson’s
cooperation, the government moved for a downward departure from the guideline
range of life imprisonment, see 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1, and
recommended a 40-year term. The district court accepted the government’s
recommendation and sentenced Johnson to 40 years on each count, to run
concurrently. Johnson filed a notice of appeal but his appointed counsel now moves
to withdraw because he cannot discern a nonfrivolous issue for appeal. See Anders
v. California,
386 U.S. 738 (1967). Counsel’s brief in support of his motion is
No. 05-1212 Page 2
facially adequate. We invited Johnson to respond to counsel’s motion, see Cir. R.
51(b), but he has not done so; thus we limit our review to those potential issues
explored by counsel. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir.
2002).
Counsel first considers whether Johnson could argue that he is not bound by
the appeal waiver in the plea agreement but properly concludes that this argument
would be frivolous. A defendant’s knowing and voluntary waiver of his right to
appeal is valid and enforceable. See, e.g., United States v. Bownes,
405 F.3d 634,
636-37 (7th Cir. 2005); United States v. Gibson,
356 F.3d 761, 765 (7th Cir. 2004).
Counsel suggests no reason—and none is apparent from the record—why Johnson’s
waiver was anything other than knowing and voluntary. Furthermore, counsel has
not informed us that Johnson wants to withdraw his guilty plea and face the
possibility of a life sentence or the death penalty. See United States v. Knox,
287
F.3d 667, 671 (7th Cir. 2002).
Counsel next considers arguing that the government should have moved for a
greater downward departure under U.S.S.G. § 5K1.1. But this potential argument
concerns Johnson’s sentence and, again, he waived his right to challenge his
sentence.
We agree with counsel that the potential issues he has identified are
frivolous. Accordingly, we GRANT his motion to withdraw and DISMISS this
appeal.