                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1014
ARMANDO NUNEZ,
                                           Petitioner-Appellant,
                                v.

UNITED STATES OF AMERICA,
                                           Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
         No. 04 C 3385—Harry D. Leinenweber, Judge.
                         ____________
    SUBMITTED JULY 19, 2006—DECIDED JULY 31, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and BAUER AND
COFFEY, Circuit Judges.
  EASTERBROOK, Chief Judge. Charged with multiple
cocaine offenses, Armando Nunez negotiated a plea
bargain: the prosecutor dismissed all counts but one
and recommended a sentence at the lowest point in the
Guideline range. As part of the deal, Nunez agreed not to
appeal or file a collateral attack unless the sentence
exceeded the statutory maximum or the waiver clause
itself should be deemed invalid. The sentence of 160
months’ imprisonment followed the prosecutor’s recom-
mendation and is well under the statutory maximum. See
21 U.S.C. §841(b). Nunez has never argued that the
waiver is invalid. Nonetheless, he told his lawyer to appeal
2                                             No. 06-1014

(or so he says; the assertion has been contested, but we
shall assume that Nunez did ask). When the lawyer
balked, he filed this collateral attack under 28 U.S.C.
§2255 charging counsel with providing ineffective assis-
tance.
  Although Nunez never asked the district court for leave
to withdraw the plea—and in open court assured the
judge that the deal was satisfactory and his assent
voluntary—he now maintains that the guilty plea was
involuntary because he could not understand what his
lawyer told him out of court. If the plea was involuntary,
then the waiver falls because it is part of the whole
package. See United States v. Wenger, 58 F.3d 280 (7th
Cir. 1995). But the lack of a motion to withdraw the plea
means that Nunez must overcome that forfeiture by
showing cause and prejudice. (On direct appeal the
standard would have been plain error, see United States v.
Vonn, 535 U.S. 55 (2002), but on collateral attack the
forfeiture is complete and the petitioner must meet the
higher standard of cause and prejudice. See United States
v. Frady, 456 U.S. 152 (1982).) Nunez would lose on any
standard, however, as the district judge concluded.
  Nunez contends that he speaks no English, and that,
because during some consultations with his counsel an
interpreter was not present (or was not used), he could not
understand what counsel told him and therefore did not
comprehend the plea bargain’s terms. That assertion is
inconsistent with assurances given to the judge, under
oath, when entering the plea. Nunez told the judge—
through an interpreter—that he fully understood the plea
and the bargain’s terms. The judge asked him detailed
questions; his answers evinced knowledge. His counsel
explained to the court how the plea had been negotiated
and that Nunez often spoke in English and understood
their exchanges when interpreters were not present (or
were not employed). Nunez told the judge that this was
correct.
No. 06-1014                                                  3

  Defendants cannot obtain relief by the expedient of
contradicting statements freely made under oath, unless
there is a compelling reason for the disparity. See, e.g.,
United States v. Peterson, 414 F.3d 825, 826–27 (7th Cir.
2005); United States v. Stewart, 198 F.3d 984 (7th Cir.
1999); United States v. Messino, 55 F.3d 1241, 1248 (7th
Cir. 1995); United States v. Ellison, 835 F.2d 687, 692–93
(7th Cir. 1987). Nunez offers no reason at all; his appellate
briefs simply ignore what he told the judge in open court.
What is more, if, as the record demonstrates, Nunez
fully understood the bargain’s terms by the time he
stood before the judge, it doesn’t make any difference
whether he understood all of what his lawyer had said
earlier. The plea was voluntary.
  Because the plea was voluntary, the waiver must be
enforced. And that waiver knocks out Nunez’s argument
that his lawyer failed to follow his direction to file an
appeal. The waiver has only two exceptions: an illegally
high sentence, and a defect in the waiver itself. A claim of
post-sentencing ineffective assistance falls squarely
within the waiver.
  In saying this, we recognize that six courts of appeals
have held that a waiver of appeal does not relieve counsel
of the duty to file a notice of appeal on his client’s request.
See United States v. Campusano, 442 F.3d 770, 772–77 (2d
Cir. 2006); United States v. Poindexter, 2007 U.S. App.
LEXIS 15360 (4th Cir. June 28, 2007); United States v.
Tapp, 2007 U.S. App. LEXIS 15343 (5th Cir. June 28, 2007);
United States v. Sandoval-Lopez, 409 F.3d 1193, 1195–99
(9th Cir. 2004); United States v. Garrett, 402 F.3d 1262,
1265–67 (10th Cir. 2005); Gomez-Diaz v. United States,
433 F.3d 788, 791–94 (11th Cir. 2005). These decisions all
rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470
(2000), that a criminal defendant has a statutory right to
appellate review, and that when counsel utterly frustrates
4                                               No. 06-1014

that right by failing to appeal on his client’s request,
counsel’s performance is automatically ineffective. A
lawyer who does not show up for trial might as well be a
moose, and giving the defendant a moose does not satisfy
the sixth amendment. See United States v. Cronic, 466
U.S. 648 (1984). The same understanding applies when the
lawyer does not show up for appeal.
  There is much to be said for this position, because
waivers of appeal are not airtight. As we have already
observed, a waiver stands or falls with the plea bargain of
which it is a part. A defendant who wants a lawyer to
argue on appeal that the plea was involuntary has a
right to that legal assistance. Moreover, waivers of
appeal have different scope. Some—for example, the
waiver in Poindexter—concern only the sentence; an ap-
peal that calls the conviction itself into question is not
foreclosed by such a waiver. Had the district judge imposed
a sentence higher than the statutory maximum, Nunez too
could have appealed.
   A rule that a lawyer must file an appeal on demand, and
let the court of appeals sort out whether the defendant
is entitled to appellate review, avoids any need to make
nice distinctions during the 10 days allowed for appeal (or
on collateral review if the lawyer fails to file the notice).
Simplicity is a virtue, and a mechanical rule (“On request,
file a notice of appeal”) could be a good addition to the
Federal Rules of Criminal Procedure whether or not the
Constitution demands this outcome.
  We confess to some doubt about the constitutional
reasoning of the circuits that have located in the sixth
amendment a rule that a lawyer is the client’s puppet. In
Roe the Court remarked that a failure to file a notice of
appeal “cannot be considered a strategic decision; filing
a notice of appeal is a purely ministerial task, and the
failure to file reflects inattention to the defendant’s
No. 06-1014                                                5

wishes.” 528 U.S. at 477. Usually that’s true, for an appeal
can help but not harm the defendant. But filing cannot
be called “ministerial” when the defendant has waived
any entitlement to appeal, not only in the plea agree-
ment but also in open court. See Fed. R. Crim. P.
11(b)(1)(N). There is no constitutional entitlement to
revoke a waiver; to the contrary, waivers must be enforced
even if the defendant changes his mind. A defendant who
waits past the time for appeal (10 days in federal court) to
ask his lawyer to proceed cannot expect that this will be
done as a “purely ministerial” task, for after 10 days there
is no longer a right to appeal; likewise there is no longer a
right to appeal following a waiver.
   Far from having a ministerial duty to follow his client’s
(latest) wishes, a lawyer has a duty to the judiciary to
avoid frivolous litigation—and an appeal in the teeth of a
valid waiver is frivolous. A lawyer also has a duty to his
client to avoid taking steps that will cost the client the
benefit of the plea bargain. (That’s another reason why
filing a notice of appeal, if the client has surrendered that
right in exchange for something he values more, such as
a shorter sentence, can’t be called a “ministerial duty.”) A
lawyer might have a responsibility to file an appeal if the
client indicated a desire to withdraw the plea, for that
amounts to a declaration by the defendant of willingness
to give up the plea’s benefits, and withdrawal would
abrogate the waiver too; but Nunez (who had not moved to
withdraw the plea) does not contend that he told his
lawyer that he had any desire to achieve that goal by an
appeal.
  Ordinarily a lawyer cannot make an independent
decision about whether an appeal would be frivolous but
must follow the procedure outlined in Anders v. California,
386 U.S. 738 (1967), and proceed as an advocate until the
judiciary agrees with counsel’s belief that more litigation
would be frivolous. As we explained in United States v.
6                                               No. 06-1014

Eskridge, 445 F.3d 930, 932 (7th Cir. 2006), however, the
Anders procedure is required only when there is a right to
appeal (and thus a right to have counsel act as an advocate
on appeal). Nunez gave up his right to appeal, and with
it the foundation for the Anders approach.
   With the waiver in force, counsel’s duty to protect his
client’s interests militates against filing an appeal. United
States v. Whitlow, 287 F.3d 638 (7th Cir. 2002), and United
States v. Hare, 269 F.3d 859 (7th Cir. 2001), hold that,
when a defendant violates a plea agreement by appealing
despite a promise not to do so, the prosecutor may with-
draw concessions made as part of the bargain. The prose-
cutor made substantial concessions to Nunez. An appeal
could have put them in jeopardy, allowing the prosecutor
to reinstate the two dismissed charges or ask the district
court to increase the sentence on the existing conviction. If
it did nothing else, an appeal would have demonstrated
that Nunez had not accepted responsibility and would
have entitled the judge to rescind the discount under
U.S.S.G. §3E1.1. A defendant has more reason to protest
if a lawyer files an appeal that jeopardizes the benefit of
the bargain than to protest if the lawyer does nothing—for
“nothing” is at least harmless.
  The sort of appeal that the Supreme Court considered in
Roe is one where the defendant can gain but not lose.
The sort of appeal that Nunez wanted to take was one by
which he could lose but not gain. Protecting a client from
a lay-person’s folly is an important part of a lawyer’s job.
It will not do to reply, along the lines of Roe, that whether
to appeal is a decision entrusted to the defendant person-
ally, on which the lawyer may give advice but not act
unilaterally. Nunez had made a personal decision—a
decision not to appeal. That’s what the waiver was all
about. As we’ve stressed, a defendant has no right to
countermand such a formal choice, and a lawyer faced with
No. 06-1014                                                7

inconsistent instructions by his client does not have a
“ministerial” duty to follow one rather than the other. The
lawyer’s duty is to do what’s best for the client, which
usually means preserving the benefit of the plea bargain.
  But we need not decide whether these arguments are a
sufficient response to the mandatory-appeal-notwith-
standing-the-waiver-of-appeal approach that our col-
leagues in other circuits have derived from Roe. For
there remains the question whether Nunez is entitled to
relief based on a conclusion that his lawyer furnished
ineffective assistance after the district judge pronounced
sentence. Recall that the waiver Nunez negotiated for-
swears not only a direct appeal but also any opportunity to
wage a collateral attack. Ineffective assistance before the
plea’s acceptance might spoil the plea’s validity and thus
undermine the waiver. But ineffective assistance after
the plea (indeed, after the sentence’s imposition) cannot
retroactively make the plea invalid. Waivers of appeal
block constitutional as well as statutory arguments. See
United States v. Behrman, 235 F.3d 1049 (7th Cir. 2000).
  If the plea (and thus the waiver) is valid, an argument
that counsel furnished ineffective assistance is among the
foreclosed theories. Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999), holds that a claim of ineffective
assistance may be open under §2255, but that “the right to
mount a collateral attack . . . survives only with respect to
those discrete claims which relate directly to the negotia-
tion of the waiver.” See also United States v. Joiner, 183
F.3d 635, 644–45 (7th Cir. 1999). Nunez’s challenge to his
lawyer’s handling of the appeal has nothing to do with the
negotiation of the waiver. Thus Nunez’s waiver must be
enforced and his collateral attack dismissed whether or
not his lawyer should have filed an appeal on demand.
                                                 AFFIRMED
8                                        No. 06-1014

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—7-31-07
