                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Submitted August 16, 2006
                              Decided August 17, 2006

                                       Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-1652

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Northern District of
                                             Indiana, Hammond Division
      v.
                                             No. 2:03CR015TLS
YOUSEF ZRIAKAT,
    Defendant-Appellant.                     Theresa L. Springmann,
                                             Judge.

                                     ORDER

       Yousef Zriakat pleaded guilty to conspiracy to commit wire fraud in violation
of 18 U.S.C. § 371. As part of his plea agreement, Zriakat waived any right to
appeal his conviction, his sentence, or any restitution order “on any ground.” The
district court sentenced him to 60 months’ imprisonment (the statutory maximum,
which fell below the calculated guidelines range), two years’ supervised release, and
$318,561 in restitution. Despite the appeal waiver, Zriakat filed a notice of appeal,
but his appointed counsel moves to withdraw, stating that he cannot discover a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We
invited Zriakat to respond to his counsel’s motion, see Cir. R. 51(b), and he has done
so. Thus, our review is limited to the potential issues identified in counsel’s
No. 05-1652                                                                    Page 2

facially-adequate brief and in Zriakat’s Rule 51(b) submission. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

       Counsel first considers whether Zriakat might argue that his guilty plea was
invalid, and concludes that the option is foreclosed under our decision in United
States v. Davis, 121 F.3d 335 (7th Cir. 1997), because Zriakat waived an
opportunity to withdraw his plea in the district court. We disagree with counsel’s
reading of Davis, which holds merely that an appellant “is not entitled to a second
bite of the apple by raising on appeal the very matter that he told the district court
he did not want to raise.” Id. at 339; see also United States v. Phillips, 239 F.3d
829, 840 (7th Cir. 2001). Zriakat’s waiver below thus cannot have precluded every
possible challenge to the validity of his plea. Nonetheless, we agree that there is no
possible basis for a challenge to the plea. Even if Zriakat had wished to withdraw
his plea, we would refuse to allow him to do so because the district court’s thorough
plea colloquy is sufficient to assure us that the plea was knowingly and voluntarily
entered. See United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003).

      Counsel next considers whether there is any other reason Zriakat should not
be bound by his appeal waiver. We have recognized a few exceptions to the general
enforceability of appeal waivers, applying, for example, when the district court’s
sentence is based on constitutionally impermissible criteria such as race, or when it
exceeds the statutory maximum for the defendant’s crime. See United States v.
Lockwood, 416 F.3d 604, 608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634,
637 (7th Cir. 2005). But we agree with counsel that none of these exceptions
applies.

        Zriakat, in his response, asks us to hold that the district court annulled his
appeal waiver because it stated after imposing his sentence: “I now advise you that
you can appeal your conviction in this case if you believe that your guilty plea was
somehow unlawful or involuntary, or if there’s some other fundamental defect in
the proceedings that was not waived by your guilty plea.” This argument, however,
is frivolous because even if the court had wanted to do so it could not have excised a
portion of the plea agreement. See United States v. Martin, 287 F.3d 609, 622 (7th
Cir. 2002). A plea agreement must stand or fall as a whole. Id. Moreover, it is
clear that the district court did not intend to release Zriakat from his waiver.
Subsequent to the language to which Zriakat points, the district court noted that he
had waived his right to appeal, and went on to add that “[s]uch waivers are
generally enforceable but if you believe the waiver is unenforceable, you can present
that theory to the Court of Appeals.” The district court did no more than inform
Zriakat of the possibility of exceptions such as those we have just discussed.

      Because we conclude that the appeal waiver is enforceable, we need not
consider any of the potential issues either counsel or Zriakat raise regarding his
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sentence. We GRANT counsel’s motion to withdraw and order that the appeal be
DISMISSED.
