                          NONPRECEDENTIAL DISPOSITION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 29, 2009
                                   Decided July 30, 2009

                                          Before

                           RICHARD A. POSNER, Circuit Judge

                           JOHN L. COFFEY, Circuit Judge

                           DANIEL A. MANION, Circuit Judge

No. 08-3466

UNITED STATES OF AMERICA,                          Appeal from the United States District
     Plaintiff-Appellee,                           Court for the Northern District of Illinois,
                                                   Eastern Division.
       v.
                                                   No. 05 CR 880-3
ANDREW TYMS,
    Defendant-Appellant.                           Matthew F. Kennelly,
                                                   Judge.

                                        ORDER

        Andrew Tyms pleaded guilty to conspiring to distribute and possess with intent to
distribute more than 500 grams of powder cocaine and more than 50 grams of crack. See 21
U.S.C. §§ 846, 841(a)(1). In the plea agreement, Tyms waived his right to appeal his
conviction and any part of his sentence or the manner in which it was determined,
provided that the government moved for a below-guidelines sentence. Appellate counsel
asserts that the waiver applies and requests permission to withdraw because he cannot
discern a nonfrivolous issue for appeal. See Anders v. California, 382 U.S. 738 (1967). Tyms
has not responded to counsel’s submission, see C IR. R. 51(c), and so we confine our review
No. 08-3466                                                                                Page 2

to the potential issues identified in counsel’s facially adequate brief. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

        This was Tyms’s second attempt at pleading guilty. The district court rejected the
first plea agreement because neither side had contemplated that Tyms would be sentenced
as a career offender, U.S.S.G. § 4B1.1, which would have more than doubled the anticipated
sentence. But the court accepted the second plea agreement, which was made under
Federal Rule of Criminal Procedure 11(c)(1)(C), binding the court to sentence Tyms
according to the terms negotiated by the parties. The parties agreed that Tyms would be
sentenced within a range of 126 to 157 months’ imprisonment as long as the government
moved under United States Sentencing Guideline § 5K1.1 for a sentencing reduction. At
sentencing the government moved for the reduction, and the court sentenced Tyms to 126
months’ imprisonment.

       In his Anders brief, counsel first notes that Tyms has not indicated that he wishes to
challenge his guilty plea and therefore properly refrains from analyzing the adequacy of
the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2001).

       Next, Counsel considers whether Tyms could challenge the appeal waiver. But as
counsel notes, the government triggered the waiver under the terms of the plea agreement
by moving for a reduced sentence. See United States v. Suggs, 374 F.3d 508, 519 (7th Cir.
2004). And since Tyms does not challenge his guilty plea, the appeal waiver stands with
the plea. See Nunez v. United States, 546 F.3d 450, 454 (7th Cir. 2008); United States v. Hare,
269 F.3d 859, 860 (7th Cir. 2001).

       Counsel next considers whether Tyms may challenge his sentence negotiated under
Rule 11(c)(1)(C). See, e.g., 18 U.S.C. § 3742(a), (c); United States v. Gibson, 356 F.3d 761, 765
(7th Cir. 2004). Any such challenge, however, would be foreclosed by the appeal waiver.

       And finally, we agree with counsel that Tyms should save any claims of ineffective
assistance of counsel for collateral proceedings, rather than direct review, so that a more
complete record may be made. See Massaro v. United States, 538 U.S. 500, 504-05 (2003);
United States v. Harris, 394 F.3d 543 (7th Cir. 2005).

       Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
