                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-1479
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                v.

GILBERT MANNING,
                                            Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
                     Southern District of Illinois.
     No. 3:12-cr-30330-DRH-1 — David R. Herndon, Chief Judge.
                    ____________________

       SUBMITTED MAY 7, 2014 — DECIDED JUNE 9, 2014
                  ____________________
   Before POSNER, Circuit Judge.
    The government moves to dismiss this criminal appeal as
frivolous because the appellant, Gilbert Manning, waived his
right to appeal when he pleaded guilty. During a stint as
motions judge (a position that rotates among the judges of
this court) I ordered the appellant to respond to the govern-
ment’s motion. His counsel, appointed after the government
filed its motion, has asked for more time to determine
whether the appeal has any possible merit. I think it’s better
2                                                    No. 14-1479


for the government’s motion to be decided when the case is
presented to a merits panel for decision, and by that panel.
The appellant’s counsel will file a merits brief or alternative-
ly an Anders brief, and if the former then the government in
responding will doubtless plead the appeal waiver. The
government’s filing of a separate motion, in advance of full
briefing, to dismiss a criminal appeal as frivolous should be,
though not forbidden, discouraged.
    Federal Rule of Appellate Procedure 27 authorizes the
government to file a motion to dismiss a criminal appeal in
advance of full briefing, and such a filing makes perfectly
good sense when the basis of the motion is absence of appel-
late jurisdiction; if there is no appellate jurisdiction, briefing
the merits is a waste of time. But an appeal waiver in a plea
agreement does not deprive the appellate court of jurisdic-
tion. United States v. Mason, 343 F.3d 893, 893 (7th Cir. 2003).
In response to the Rule 27 motion the appellant’s lawyer
may be able to mount a nonfrivolous argument that the plea
agreement’s waiver of appeal rights does not bar the appeal,
whether because an issue presented by the appeal is outside
the scope of the waiver or because the waiver is excusable,
either because it was not knowing and voluntary or on one
or more of the grounds listed in United States v. Adkins, 743
F.3d 176, 191–93 (7th Cir. 2014).
    The only benefit that I can imagine from the govern-
ment’s filing a motion to dismiss on grounds of appeal
waiver before the appeal is briefed is that it will accelerate
evaluation of the merits of the appeal by the appellant’s
lawyer. The lawyer is likely, however, as in the present case,
to seek and obtain an extension of time in which to respond
to the motion, United States v. Mason, supra, 343 F.3d at 894–
No. 14-1479                                                     3


95, in which event the motion to dismiss is unlikely to accel-
erate the court’s decision.
    The appellant’s counsel suggests a sensible compromise:
that before filing a motion to dismiss on the basis of waiver
of appeal the government file a notice of intent to file such a
motion. The notice would constitute an early warning to the
appellant’s counsel—who in many cases will not have been
counsel in the district court—that there is an appeal waiver
and that the government intends to enforce it (it can waive
the waiver if it wants; see Nunez v. United States, 546 F.3d
450, 452 (7th Cir. 2008)). Counsel will thus be prompted to
discuss with the appellant whether the appeal should be
dismissed voluntarily. See Fed. R. App. P. 42(b); 7th Cir. R.
51(f). If the appellant wants to fight it, counsel can either file
an Anders brief if he thinks the fight futile or try to show that
the appeal waiver does not apply. The government’s notice
of intent to enforce the appeal waiver will have the same ac-
celerating effect as a motion to dismiss, while requiring less
work for both sides and preserving the briefing schedule.
   I therefore order decision on the government’s motion to
dismiss the appeal deferred to the merits panel.
