                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



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

                                 Submitted July 24, 2014
                                  Decided July 24, 2014

                                          Before

                          FRANK H. EASTERBROOK, Circuit Judge

                          DANIEL A. MANION, Circuit Judge

                          DIANE S. SYKES, Circuit Judge

No. 13-3101

UNITED STATES OF AMERICA,                      Appeal from the United States District
     Plaintiff-Appellee,                       Court for the Northern District of Illinois,
                                               Eastern Division.
       v.
                                               No. 09cr188
ROBERT A. BRYANT,
    Defendant-Appellant.                       James B. Zagel,
                                               Judge.

                                        ORDER

       Robert Bryant ran a business reselling “certificates of purchase” he acquired at
auction from Cook County, Illinois. Periodically the county conducts a “scavenger sale”
to auction property-tax liens that have not sold at an annual sale; the liens are
extinguished in favor of the certificate of purchase, but the certificate does not guarantee
that the holder will acquire the property. See 35 ILCS § 200/21-260. Bryant promised to
refund his buyers’ money if the owner of the real estate later paid the delinquent taxes
or the county concluded that the tax lien had been issued by mistake. But as business
progressed he stopped honoring that promise, and in some instances Bryant failed to
deliver the certificates his investors had paid for.
No. 13-3101                                                                           Page 2

        In 2009 the government accused Bryant of bilking investors of $1.3 million, and
charged him with mail and wire fraud, 18 U.S.C. §§ 1341, 1343, making false statements
to a financial institution, id. § 1014, and structuring currency transactions to avoid bank
reporting requirements, 31 U.S.C. § 5324(a)(3). Bryant pleaded guilty to a single count of
structuring, and as part of his plea agreement he waived his right to appeal “any part of
the sentence (or the manner in which that sentence was determined), including any
term of imprisonment and fine within the maximums provided by law.” By default the
statutory maximum for structuring is 5 years, but that penalty is enhanced to 10 years if
the violation was “part of a pattern of any illegal activity involving more than $100,000
in a 12-month period.” 31 U.S.C. § 5324(d)(1), (2). The district judge found by a
preponderance that the factual criteria for the enhanced penalty were established and
sentenced Bryant to 9 years in prison. Bryant did not appeal.

       On collateral review under 28 U.S.C. § 2255, the government conceded that the
9-year sentence exceeded the statutory maximum because the district judge had not
found the facts necessary to impose the enhanced penalty beyond a reasonable doubt.
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The district court vacated the
sentence, appointed counsel, and resentenced Bryant to 5 years. Bryant filed a notice of
appeal, but the government has moved to dismiss the case based on the appeal waiver.
See United States v. Mason, 343 F.3d 893, 893–94 (7th Cir. 2003). In response, Bryant’s
counsel concedes that the appeal is frivolous and moves to withdraw under Anders v.
California, 386 U.S. 738, 744 (1967). Because counsel’s brief addresses the issues that
an appeal of this kind might be expected to involve and the analysis appears to be
thorough, we limit our review to the subjects that counsel has discussed, plus the
additional issues that Bryant, disagreeing with counsel, believes have merit. See CIR.
R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

        Counsel notes that Bryant’s guilty plea (and thus his appeal waiver) is not open
to attack because he did not file a direct appeal after his conviction. See United States v.
Longstreet, 669 F.3d 834, 838 (7th Cir. 2012). As counsel correctly concludes, this
enforceable waiver makes any argument about his 5-year sentence frivolous. See United
States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); Nunez v. United States, 546 F.3d 450, 453
(7th Cir. 2008).

        Bryant says in his Rule 51(b) response that he would argue on appeal that he was
resentenced “without counsel.” He is wrong. Bryant had counsel at the resentencing
hearing (his first appointed lawyer withdrew based on irreconcilable differences, and he
tried to get his substitute counsel replaced the day before his resentencing, but the judge
No. 13-3101                                                                           Page 3

denied that request as made too late). If Bryant means to assert that his lawyer at
resentencing was deficient, his contention is foreclosed by his appeal waiver, which
allows only claims of ineffective assistance “relat[ing] directly” to the waiver or its
negotiation. See Jones v. United States, 167 F.3d 1142, 1145–46 (7th Cir. 1999). The rest of
his response discusses claims that the district court has allowed him to include in a
supplemental motion in the ongoing § 2255 proceeding and are not properly before us.
See 28 U.S.C. § 2253(c); United States v. Fleming, 676 F.3d 621, 624–25 (7th Cir. 2012).

       Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
