USA v. Hugh McGowan

Filing

Filed Nonprecedential Disposition PER CURIAM. The motion to withdraw is GRANTED, and the appeal is DISMISSED. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and Diane P. Wood, Circuit Judge. [6467912-2] [6485010-1] [6485010] [12-3396]

Case: 12-3396

Document: 14
Filed: 05/09/2013
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

Pages: 2

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2013
Decided May 9, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12-3396
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HUGH L. McGOWAN,
Defendant-Appellant.

Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 12-CR-39
William C. Griesbach,
Chief Judge.
ORDER

Hugh McGowan trafficked cocaine from Chicago for sale to buyers in Wisconsin’s
Fox River Valley. Drug Enforcement Administration agents made 45 controlled buys from
dealers in the region, many of whom had ties to McGowan, and the agents arrested
McGowan after executing a search warrant on his house. He pleaded guilty to conspiracy
to distribute and to possess with intent to distribute crack cocaine, and possession of crack
cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). McGowan’s plea agreement included
a waiver of his right to appeal any sentence below the statutory maximum that did not
result from ineffective assistance of counsel or consideration of constitutionally
impermissible factors. The district court imposed 180 months’ imprisonment and 5 years’
supervised release. McGowan filed a notice of appeal, but his appellate counsel has
concluded that the appeal is frivolous and moves to withdraw under Anders v. California,

Case: 12-3396

Document: 14

Filed: 05/09/2013

No. 12-3396

Pages: 2
Page 2

386 U.S. 738, 744 (1967). McGowan has not responded to counsel’s submission. See CIR. R.
51(b). We review only the potential issues identified in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
McGowan has told counsel that he does not want his guilty plea set aside, so
counsel properly omits from his Anders submission any discussion about the adequacy of
the plea colloquy or the voluntariness of the plea. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002). It follows, says
counsel, that McGowan’s appeal waiver makes this appeal frivolous. We agree with
counsel; because an appeal waiver stands or falls with the guilty plea, United States v. Zitt,
Nos. 12-1277, 12-2865, 2013 WL 1501956, at *4 (7th Cir. Apr. 15, 2013); United States v.
Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), McGowan’s waiver must be enforced.
Moreover, no element of his sentence exceeds a statutory maximum, see 21 U.S.C.
§ 841(b)(1)(A)(iii), (b)(1)(B)(iii), and the court did not rely on any unconstitutional factor
when imposing McGowan’s sentence.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.