Argued October 2, 2013
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:11-CR-140, Joseph S. Van Bokkelen, Judge.
For United States of America, Plaintiff - Appellee: David E. Hollar, Attorney, Jacqueline L. Jacobs, Attorney, Office of The United States Attorney, Hammond, IN.
For Garrett Davarrass Smith, Defendant - Appellant: Daniel T. Hansmeier, Attorney, Office of The Federal Public Defender, Springfield, IL; Peter W. Henderson, Attorney, John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
Garrett Smith pleaded guilty to a charge that he
possessed with the intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1), and the district court ordered him to serve
a prison term of 168 months. Despite having expressly waived his right to appeal
the sentence in his written plea agreement, Smith nonetheless has appealed,
contending that he was deprived of the effective assistance of counsel when his
counsel failed to challenge the district court's finding that he was a career
offender. Smith urges us to overlook the waiver on the ground that his
attorney's alleged ineffectiveness at sentencing was " patent." We enforce the
appellate waiver and dismiss the appeal.
A tip identified Smith to federal agents as a possible cocaine dealer. Armed with a search warrant, they arrived at his apartment to discover 806.5 grams of powder cocaine, 148.6 grams of crack cocaine, 603.4 grams of marijuana, and a loaded
Glock handgun. Smith admitted to the agents that the drugs were his and that he intended to distribute them. He was eventually charged in a three-count indictment of possessing with the intent to distribute cocaine, crack cocaine, and marijuana, all in violation of section 841(a)(1).
Smith's retained counsel negotiated a plea agreement which was committed to writing. Smith agreed to plead guilty to Count 1 of the indictment, the cocaine count, to cooperate with the government, and to waive his appellate rights. The government agreed in exchange to dismiss Counts 2 and 3 of the indictment, not to pursue enhanced statutory penalties based on Smith's prior narcotics conviction, see 21 U.S.C. § 851, to recommend that Smith receive maximum credit for acceptance of responsibility, see U.S.S.G. § 3E1.1(b), to consider filing a motion to reduce the Sentencing Guidelines range in recognition of Smith's cooperation, see U.S.S.G. § 5K1.1, and to recommend that the court impose a sentence at the bottom of the advisory Guidelines range.
The provision of the plea agreement concerning Smith's appellate rights is quite clear as to what Smith was waiving. As we rest our decision on the waiver, the ...