                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                           Submitted September 25, 2006
                            Decided September 26, 2006

                                       Before

                  Hon. THOMAS E. FAIRCHILD, Circuit Judge

                  Hon. RICHARD A. POSNER, Circuit Judge

                  Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4492

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Southern District of
                                              Indiana, Indianapolis Division
      v.
                                              No. 1:05CR00008-011
GREGORIO OCHOA-ROCHEL,
    Defendant-Appellant.                      Sarah Evans Barker,
                                              Judge.

                                     ORDER

       Gregorio Ochoa-Rochel pleaded guilty to conspiring to possess with intent to
distribute in excess of 500 grams of cocaine, see 21 U.S.C. §§ 846, 841(a)(1), and was
sentenced to ten years’ imprisonment. In his plea agreement Ochoa-Rochel waived
his right to appeal his conviction or sentence, but he nevertheless filed a notice of
appeal. His appointed counsel now moves to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Ochoa-Rochel has not accepted our invitation to comment on counsel’s motion. See
Cir. R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our
review to the potential issues identified by counsel. See United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997).
No. 05-4492                                                                  Page 2

      Counsel first considers whether Ochoa-Rochel could argue that his guilty
plea was not knowing or voluntary. But counsel also informs us that Ochoa-Rochel
has never indicated that he wanted to withdraw his guilty plea. Thus counsel
should not have considered this argument. See United States v. Knox, 287 F.3d 667,
671 (7th Cir. 2002).

       Counsel next considers whether Ochoa-Rochel could challenge the validity of
the appeal waiver. The appeal waiver in Ochoa-Rochel’s plea agreement was a
promise by Ochoa-Rochel to forego challenging his “conviction and any sentence
imposed on any ground” so long as the district court sentenced him at or below the
low end of the applicable guidelines imprisonment range. The plea agreement also
acknowledged that, in the event the low end of that range fell below the statutory
minimum term of imprisonment, the statutory minimum would become the
guidelines sentence. See U.S.S.G. § 5G1.1(b); United States v. King, 62 F.3d 891,
893 (7th Cir. 1995). Although the district court initially calculated a guidelines
imprisonment range for Ochoa-Rochel of 84 to 105 months, a prior felony drug
conviction subjected him to a ten-year statutory minimum term of imprisonment.
See 21 U.S.C. 841(b). Thus the ten-year statutory minimum became the applicable
guidelines sentence, and the district court sentenced him to the minimum
applicable guidelines sentence. Ochoa-Rochel is accordingly bound by the appeal
waiver unless he wants his entire plea agreement set aside, see United States v.
Whitlow, 287 F.3d 638, 640 (7th Cir. 2002), and he has not sought this relief, see
United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver of appeal is
valid, and must be enforced, unless the agreement in which it is contained is
annulled.”). But even if the waiver is ineffective, counsel has identified no other
non-frivolous arguments to pursue on this appeal.

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