United States v. Juan Duran ( 2013 )

NONPRECEDENTIAL DISPOSITION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, 2013
Decided July 25, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12-2957
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 01 CR 1115-2
JUAN DURAN,
Defendant-Appellant. Milton I. Shadur,
Judge.
ORDER
Juan Duran distributed PCP to users and to street-level dealers in his gang during
2000 and 2001. The FBI obtained a warrant for his arrest after making several controlled
buys and acquiring wiretap evidence. Duran saw the agents entering his home and fled to
Mexico, where he remained until Mexican police arrested him in 2010 and turned him over
to U.S. authorities. Duran pleaded guilty to conspiracy to possess with intent to distribute,
21 U.S.C. §§ 846, 841(a)(1), and because the stipulated amount of PCP was at least a
kilogram, Duran faced a statutory maximum and guidelines sentence of life imprisonment,
id. § 841(b)(1)(A)(iv). The district court sentenced him below the guidelines range to 300
months. Duran’s plea agreement includes a broadly worded waiver of appeal, but still he
filed a notice of appeal. His appointed lawyer has concluded, however, that the appeal is
No. 12-2957 Page 2
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Duran has
not accepted our invitation to respond to counsel's motion. See CIR. R. 51(b).
Duran has told counsel that he does not want his guilty plea set aside, and counsel
thus refrains from discussing the voluntariness of the plea. See United States v. Konczak, 683
F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Duran’s satisfaction with his guilty plea also means that the adequacy of the plea colloquy
would not be a potential ground for appeal, yet counsel goes on to tell us that the district
court did not admonish Duran about the appeal waiver during the colloquy. See FED. R.
CRIM. P. 11(b)(1)(N). Apparently counsel believes that Duran could dispute the validity of
the appeal waiver even while choosing not to contest his guilty plea, but our decisions
reject this “assumption that we can perform surgery on his plea agreement, excising only
. . . the waiver of his right to appeal.” United States v. Sura, 511 F.3d 654, 655 (7th Cir. 2007);
see United States v. Lockwood, 416 F.3d 604, 607 (7th Cir. 2005). An appeal waiver stands or
falls with the guilty plea, see, e.g., United States v. Sakellarion, 649 F.3d 634, 638–39 (7th Cir.
2011); United States v. Cole, 569 F.3d 774, 776 (7th Cir. 2009), and thus Duran’s choice to
forgo a challenge to his guilty plea also means that he is bound by the appeal waiver.
See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). That waiver precludes the
potential sentencing argument discussed in counsel’s Anders submission and so we need
not analyze that possible basis for appeal.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.