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United States of America v. Joshua W. Henry

December 7, 2012


Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:10-cr-50038-1--Frederick J. Kapala, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before POSNER, WOOD, and TINDER, Circuit Judges.

Joshua W. Henry pleaded guilty to two counts of using a communication facility to further the commission of a drug felony. As part of his plea agreement, he waived the right to appeal any part of his sentence. The district court sentenced him to 96 months' imprisonment to run consecutive to his undischarged state sentence. Henry argues on appeal that his plea was not knowingly given because the district court did not explain that his federal sentence could be consecutive to his undischarged state sen- tence. He also argues that his waiver of appellate rights is ineffective because it stands or falls with the plea.


On December 5, 2008, Henry pleaded guilty to several drug offenses in Iowa state court. On March 2, 2009, the state court sentenced him to 10 years' imprisonment, suspended, and 5 years' probation. Later that same day, Henry and Larry Parazine took a trip from Dubuque, Iowa, to the Chicago, Illinois, area. On the way, Henry used his cellular telephone at least twice to contact his drug supplier in the Chicago area. Henry purchased heroin and cocaine from his supplier, intending to distribute the drugs in Iowa. While Henry and Parazine were driving through Jo Daviess County in the northwest corner of Illinois, they were stopped by law enforcement. As a result, the Iowa state court revoked Henry's probation and sentenced him to 10 years' imprisonment.

Henry was subsequently charged in federal court with drug conspiracy and possession offenses. On Decem- ber 7, 2011, he pleaded guilty to a superseding information that charged him with two counts of using a telephone to distribute cocaine in violation of 21 U.S.C. § 843(b). As part of his written plea agreement, Henry "agreed that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons of 96 months. Other than the agreed term of incarceration, [he] agreed that the Court remains free to impose the sentence it deems appropriate." The plea agreement states that it "is entirely voluntary," and contains the following provisions:

c. Waiver of appellate and collateral rights. De- fendant . . . understands he is waiving all appel- late issues that might have been available . . . [D]efendant knowingly waives the right to appeal his conviction . . . and any part of the sentence (or the manner in which that sentence was deter- mined), including any term of imprisonment and fine within the maximums provided by law, in exchange for the concessions made by the United States in this Plea Agreement . . .

d. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs. Defendant's attorney has explained those rights to him, and the consequences of his waiver of those rights.

On December 7, 2011, the district court conducted a thorough plea colloquy. The court asked Henry his age, the extent of his education, whether he had any difficulty reading or writing, and whether he was under the in- fluence of any drugs or alcohol or taking any med- ications, and found him competent to plead guilty. The court asked him whether he was satisfied with his counsel's representation, and Henry responded in the affirmative. The court read Henry the superseding in- dictment and asked if he understood the charges. Henry answered, "Yes."

The court turned to the plea agreement and asked Henry if his signature was on the agreement. Henry responded affirmatively. The court inquired if anyone had forced Henry to sign the agreement or if any other agreements or promises had been made to him that were not in the agreement. Henry responded, "No."

Then the court asked if Henry had read the agree- ment before signing it, had discussed all aspects of it with his counsel, and understood all of its terms. Henry responded affirmatively. In discussing sentencing, the court noted the parties' agreement to a sentence of 96 months and stated that if the court accepts the agreement and imposes a sentence consistent with that agreement, Henry would not be able to withdraw his guilty plea. Henry said he understood.

Then the court explained to Henry that "[o]rdinarily you would have the right to appeal your plea of guilty, conviction, and any sentence that I impose. However, by entering into this plea agreement and by pleading guilty, in exchange for concessions made by the government, you will have waived or given up your right to appeal your plea of guilty, conviction, and sentence." The court asked Henry if he understood everything the court had said about his appeal rights, and Henry answered, "Yes." Henry agreed with the government's summary of the evidence and pleaded guilty to both counts against him. The court found that Henry "has been advised of his rights and understands them," that he "is aware of the nature of the charges, the consequences of the plea, and the possible punishment, that there have been no threats against [him] to coerce him to plead guilty, and that the plea of guilty is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offenses." The court accepted the plea.

On March 12, 2012, the district court sentenced Henry to 48 months' imprisonment on each count to run con- secutively for a total of 96 months and ordered that the sentence be served consecutively ...

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