                       NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1



              United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                             Submitted October 16, 2009
                               Decided June 15, 2010


                                      Before

                           JOEL M. FLAUM, Circuit Judge

                         MICHAEL S. KANNE, Circuit Judge

                         TERENCE T. EVANS, Circuit Judge


No. 08-3753



UNITED STATES OF AMERICA,                      Appeal from the United States
                Plaintiff-Appellee,            District Court for the
                                               Northern District of Indiana.
      v.
                                               No. 06 CR 00023
VERNELL A. BROWN,
               Defendant-Appellant.            Theresa L. Springman, District Judge.


                                      ORDER

      On May 24, 2006, Vernell Brown was indicted, along with Marlyn Barns, Melvin
08-3753                                                                             Page 2

Taylor, Michael Alexander, Theodis Armstead, and Herbert Hightower, for conspiracy

to possess with intent to distribute more than five kilograms of cocaine, in violation of

21 U.S.C. § 846. Brown initially proceeded to trial with Barnes, Taylor and Armstead.

However, several days into the trial, the district court stopped the proceeding and

declared a mistrial to allow Brown, Taylor, and Armstead to sever their case from

Barnes. Brown pleaded guilty before proceeding to trial again. As part of the plea

agreement, the government agreed to recommend a sentence at the low-end of the

guideline range or at the statutory minimum of 120 months if the guidelines fell below

the minimum. The district court sentenced Brown to 120 months, the statutory

minimum. Brown now appeals, but his appointed counsel has moved to withdraw

because he cannot identify any nonfrivolous argument to pursue on appeal. See Anders

v. California, 386 U.S. 738, 744 (1967). Brown opposes counsel’s motion. See CIR. R.

51(b). We confine our review to the potential issues identified in counsel’s facially

adequate brief and Brown’s response. See United States v. Schuch, 289 F.3d 968 (7th Cir.

2002); CIR. R. 51(b).

       On May 5, 2006, the six individuals indicted in this case were arrested as they

arrived at the site of a planned drug heist where they intended to steal numerous

kilograms of cocaine. Unknown to the defendants, the couriers for the target drug

shipment, who orchestrated this drug heist with the defendants, were a confidential
08-3753                                                                              Page 3

informant and an undercover agent. The shipment of drugs did not exist. All of the

planning meetings and pre-heist preparations were captured on audio and video tapes.

Alexander and Hightower pleaded guilty early on in the proceedings. The remaining

defendants, including Brown, proceeded to trial. Shortly before the beginning of the

trial, the government filed a motion pursuant to 21 U.S.C. § 851(a)(1) informing Brown

that the government intended to enhance his sentence based on his prior conviction for

possession of a narcotic controlled substance in the state of Michigan which resulted in

an eighteen-month sentence. Brown did not raise any objections to this motion. Early

in the trial, Armstead, Brown, and Taylor moved for a mistrial because Barnes agreed to

testify on their behalf. The district court granted the mistrial and severed the

defendants’ trials. Barnes proceeded to trial alone and was found guilty.

       In March 2008, shortly before his trial was scheduled to start again, Brown

entered into a plea agreement with the government. One key component of the plea

agreement was that it allowed Brown to plead guilty to an amount of drugs less than

what the indictment charged. This reduction in drug quantity decreased the statutory

mandatory minimum sentence from twenty years to ten years. Under the drug quantity

in the plea agreement the statutory maximum sentence remained life in prison. The

government agreed to recommend that the district court sentence Brown at the low end

of the guidelines range or to the statutory minimum of 120 months if the guidelines
08-3753                                                                                  Page 4

range did not meet that minimum. In the plea agreement, Brown acknowledged that

the minimum sentence he could receive was ten years because he had a prior conviction

for a felony drug offense which had become final before the time of the agreement.

Brown made the same acknowledgment in open court during his change of plea

hearing. The plea agreement also contained an express waiver of Brown’s appeal

rights: “I expressly waive my right to appeal or to contest my conviction and my

sentence and any restitution order imposed or the manner in which my conviction or

sentence or the restitution order was determined or imposed, to any Court on any

ground, including any claim of ineffectively assistance of counsel unless the claimed

ineffective assistance of counsel relates directly to this waiver or its negotiation.”

          In May 2008, approximately two months after entering a plea of guilty, Brown

moved to withdraw his guilty plea. Brown stated that he was withdrawing his plea and

all prior testimony because he entered the guilty plea “under duress and feared life long

imprisonment.” After several months of hearings, affidavits, and briefing, the district

court found that Brown was not coerced into entering the plea agreement. In assessing

Brown’s argument, the district court analyzed the potential sentences Brown could have

faced had he gone to trial and the sentencing recommendations in the plea agreement.

The district court found that Brown’s attorney was correct in telling Brown that if a jury

found him guilty and held him responsible for the amount of drugs charged in the
08-3753                                                                                 Page 5

indictment, Brown would face a minimum twenty-year sentence and could face life in

prison. The district court based its calculations of the minimum and maximum

sentences on the government’s notice under 21 U.S.C. § 851 seeking an increased

statutory minimum sentence due to Brown’s prior possession conviction in Michigan.

   In the brief filed pursuant to Anders, counsel first asserts that Brown cannot raise any

meritorious argument challenging his conviction because he entered into an

unconditional, knowing, and voluntary plea of guilty pursuant to a plea agreement.

Brown’s reply makes two arguments that are intertwined and both attack the validity of

the plea agreement as a knowing and voluntary waiver of his rights. The standard of

review applicable to whether a guilty plea is knowing and voluntary is “whether

looking at the total circumstances surrounding the plea, the defendant was informed of

his or her rights.” United States v. Mitchell, 58 F.3d 1221, 1224 (7th Cir. 1995). In

reviewing whether a defendant was informed of his rights and the subsequent plea

agreement was voluntary, we review the plea under the requirements of Federal Rule of

Criminal Procedure 11. To comport with Rule 11, the district court must advise the

defendant of his constitutional rights, the charges against him, the factual bases for the

plea, and the minimum and maximum penalties. United States v. Garcia, 35 F.3d 1125,

1132 (7th Cir. 1994). These safeguards help ensure that the defendant’s plea is knowing

and voluntary. Id.
08-3753                                                                             Page 6

      Brown argues that he did not waive his right to appeal because his plea of guilty

was not knowing and voluntary. He asserts that his counsel and the district court

misinformed him about the statutory minimum and maximum penalties because his

sentence should not have been enhanced under 21 U.S.C. § 841 on the basis of his

Michigan conviction. This argument is unavailing. Prior to trial, the government filed a

motion pursuant to 21 U.S.C. § 851 informing Brown of the government’s intention to

seek an enhanced sentence based on Brown’s prior conviction for possession of cocaine

in Michigan. At that time, Brown did not object. While there is some discrepancy

regarding whether Brown’s eighteen-month sentence was for incarceration or

probation, there is no argument in the record to counter the government’s assertion that

the Michigan conviction was a state felony conviction. Brown contends that because the

federal system does not treat mere possession as a felony, a felony conviction for simple

possession in state court cannot be used to enhance the statutory minimum sentence

under 21 U.S.C. § 841(b)(1)(B). We are not aware of any court holding that a state felony

drug conviction for possession does not trigger the increased mandatory minimum in

21 U.S.C. § 841(b)(1)(B) because simple possession is not a felony in the federal system.

Based on the record before us and the prevailing state of the law known to defense

counsel and the district court at the time of the plea agreement, Brown did not receive

misinformation about his potential sentencing liability. Therefore, his argument that he
08-3753                                                                              Page 7

was coerced into pleading guilty due to misinformation about the potential sentences he

faced is without merit.

       Counsel also asserts that Brown cannot raise any appealable issues with regard

to the district court’s denial of his motion to withdraw his plea of guilty. “A defendant

does not have an absolute right to withdraw a plea before sentencing, although the

court may allow him to do so if he has a fair and just reason for doing so.” United States

v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). We agree with counsel that Brown did not

demonstrate a fair and just reasons for withdrawing his plea of guilty. Brown argued

that he entered into his plea agreement under duress because he was afraid of receiving

a life sentence. However, the district court properly found that defense counsel’s

candid evaluation of Brown’s potential sentencing liability if he went to trial was not

coercion nor did it create impermissible duress. Therefore, any argument that the

district court erred by not allowing Brown to withdraw his guilty plea would be

frivolous.

       Lastly, counsel asserts that any argument challenging Brown’s sentence would

be frivolous because Brown specifically waived his right to appeal his sentence. When a

defendant enters into a knowing and voluntary plea of guilty pursuant to a plea

agreement that contains an explicit waiver of the defendant’s right to appeal his

sentence, this Court will honor that waiver and refuse to review the sentence, unless the
08-3753                                                                               Page 8

sentence ultimately received was in excess of the statutory maximum sentence or was

the result of the district court’s reliance on a constitutionally impermissible factor such

as race. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1998). The waiver in the plea

agreement was explicit and, for the reasons discussed above, we agree with the district

court that it was entered into voluntarily and knowingly. The sentence does not exceed

the statutory maximum and there is no evidence that the district court relied on

impermissible factors in coming to a sentence. Therefore, in light of this explicit waiver,

any argument regarding the sentence would be frivolous.

       For the reasons set forth above, we GRANT the motion to withdraw and

DISMISS Brown’s appeal.
