United States v. Flemming

299 F. App'x 603

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 18, 2008
• Docket: No. 08-2129
• Status: Published

Opinion

ORDER

In 2008 Ahmad Flemming pleaded guilty to conspiring to possess with intent to distribute crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The parties agreed on page two of Flemming’s plea agreement to a specific sentence of 240 months’ imprisonment — the mandatory minimum given the amount of crack and Flemming’s prior drug-felony conviction. See 21 U.S.C. § 841(b)(1)(A); Fed.R.CrimP. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Flemming, as agreed, to 240 months’ imprisonment. See Fed. R.CrimP. 11(c)(1)(C).

Flemming has filed a notice of appeal, hoping to challenge his prison sentence (but not his guilty plea). We lack jurisdiction, however. Under 18 U.S.C. § 3742, a defendant who agrees to a specific sentence cannot appeal the sentence imposed except in three narrow circumstances: if his guilty plea was involuntary, if the sentence he received is greater than the sentence he bargained for, or if his sentence was imposed in violation of law. See id. § 3742(a)(1), (c)(1); United States v. Gibson, 490 F.3d 604, 607 (7th Cir.2007);

United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir.2005); United States v. Barnes, 83 F.3d 934, 941 (7th Cir.1996). Flemming does not want his plea set aside, so the first possibility is out. And the second is not tenable because Flemming’s prison sentence tracks the agreement. As for the third possibility, Flemming’s sentence is the lowest permitted by law. See 21 U.S.C. § 841(b)(1)(A). Because we do not have jurisdiction, we need not reach counsel’s motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

DISMISSED.