United States v. Henry Underwood

involve. Because his analysis appears thorough, and Underwood raises no additional issues to consider under Circuit Rule 51(b), we limit our review to the subjects that counsel discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Underwood was contracted by Tyshon Powell, a man imprisoned on drug charges, to shoot a woman who had given the FBI information that led to Powell's arrest. Underwood shot the woman three times at point-blank range. She survived and identified Underwood as the shooter. That identification was corroborated by a gun found in Underwood's possession.

A grand jury signed off on a five-count superseding indictment against Underwood in May 2022. Underwood agreed to plead guilty to Count Two, aiding and abetting the attempt to kill a federal witness. 18 U.S.C. §§ 1512(a)(1)(A), (C), and 2. The written plea agreement included an appellate waiver under which Underwood expressly waived his right "to appeal or to contest [his] conviction and all components of [his] sentence" on any ground other than a claim of ineffective assistance of counsel. At a change-of-plea hearing in June 2023, the district court placed Underwood under oath and conducted a plea colloquy. The court asked Underwood to confirm that he understood the charges and applicable penalties, his trial rights, the consequences of pleading guilty, and the role of the Sentencing Guidelines. See F ED. R. CRIM. P. 11(b)(1)(A)-(N). After finding that Underwood was competent, that the plea was knowing and voluntary, and that there was an adequate factual basis establishing his guilt, the court accepted his guilty plea.

Counsel informs us that Underwood wishes to withdraw his guilty plea and first considers whether Underwood could raise a non-frivolous argument that his plea was not knowing and voluntary. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024). We agree with counsel that such a challenge would be frivolous. Underwood did not move in the district court to withdraw his plea, so our review would be limited to plain error. United States v. Schaul, 962 F.3d 917, 921 (7th Cir. 2020). The transcript of the plea colloquy shows that the court substantially complied with the requirements of Rule 11(b) and thus ensured that the plea was knowing and voluntary. See United States

v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The court, for instance, placed Underwood under oath before confirming that he understood the charges against him, the trial rights he was waiving, the consequences of the plea, and the maximum penalties he faced. See F ED. R. CRIM. P. 11(b)(1)(A)-(N).

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Counsel next considers whether Underwood could challenge his sentence and rightly concludes that the appeal waiver would foreclose any challenge. An appellate waiver stands or falls with the underlying plea agreement. See, e.g., United States v. Nulf,

978 F.3d 504, 506 (7th Cir. 2020). Because the district court validly accepted Underwood's plea, we would enforce the waiver unless an exception applies. Id. And no exception could apply here: Neither Underwood's 360-month prison term nor five-year term of supervised release exceeds the statutory maximum, 18 U.S.C. §§ 1512(a)(3)(B), 3583(b)(1), and the transcript shows that the court did not consider any constitutionally impermissible factors at sentencing.

Finally, we note that Underwood has filed two motions for the appointment of counsel to help him pursue a claim for ineffective assistance of counsel under 28 U.S.C. § 2255. We deny those motions. He must file any collateral attack in the district where he was convicted, Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019), and the norm would be to seek appointment of counsel after he has filed a § 2255 motion, see United States v. Von Vader, 58 F.4th 369, 372 (7th Cir. 2023).

We GRANT counsel's motion to withdraw and DISMISS the appeal.

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