United States v. Jorge Rosas ( 2012 )


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  •                             NONPRECEDENTIAL DISPOSITION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 December 5, 2012
    Decided December 5, 2012
    Before
    ILANA DIAMOND ROVNER, Circuit Judge
    ANN CLAIRE WILLIAMS, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 11-3879
    UNITED STATES OF AMERICA,                          Appeal from the United States District
    Plaintiff-Appellee,                           Court for the Northern District of Indiana,
    Fort Wayne Division.
    v.
    No. 1:10-CR-61-TLS
    JORGE ROSAS,
    Defendant-Appellant.                          Theresa L. Springmann,
    Judge.
    ORDER
    Jorge Rosas pleaded guilty to conspiring to distribute and possess with intent to
    distribute more than 50 grams of methamphetamine, see 
    21 U.S.C. §§ 841
    (a)(1), 846. In a
    written plea agreement Rosas waived his right to appeal his conviction and sentence and
    his right to claim ineffective assistance of counsel (unless it relates directly to the waiver or
    its negotiation). A magistrate judge thoroughly reviewed the agreement with Rosas,
    concluded that Rosas’s plea was knowing and voluntary, and recommended accepting the
    agreement. The district judge adopted the recommendation and sentenced Rosas to 210
    months, the bottom of the calculated guidelines range. Rosas then brought this appeal. His
    attorney asserts that this appeal is frivolous and seeks to withdraw under Anders v.
    California, 
    386 U.S. 738
    , 744 (1967). Rosas opposes counsel’s motion. See CIR. R. 51(b). We
    No. 11-3879                                                                                Page 2
    confine our review to the potential issues identified in counsel’s facially adequate brief and
    in Rosas’s response. See United States v. Schuh, 
    289 F.3d 968
    , 973–74 (7th Cir. 2002).
    Counsel first considers whether Rosas could challenge the validity of his guilty plea
    under Federal Rule of Criminal Procedure 11 but aptly rejects any such argument as
    frivolous. The transcript of the plea colloquy shows that the magistrate judge complied
    with the requirements of Rule 11, discussed the various rights Rosas would be giving up by
    pleading guilty, and ensured that the plea was voluntary. See FED. R. CRIM. P. 11; United
    States v. Bowlin, 
    534 F.3d 654
    , 656–57 (7th Cir. 2008); United States v. Blalock, 
    321 F.3d 686
    , 688
    (7th Cir. 2003).
    Counsel also considers two potential challenges to the sentence: first, whether Rosas
    could argue that the district court erroneously applied more than one two-level
    enhancement under U.S.S.G. § 2D1.1(b)(14), and second, whether Rosas could argue that
    his sentence is unreasonable. But in light of the appeal waiver, counsel correctly concludes
    that these challenges would be frivolous. See United States v. Whitlow, 
    287 F.3d 638
    , 640 (7th
    Cir. 2002). At all events, as counsel notes, we presume that a within-guidelines sentence is
    reasonable, see Rita v. United States, 
    551 U.S. 338
    , 347 (2007); United States v. Pape, 
    601 F.3d 743
    , 746 (7th Cir. 2010), and counsel has not been able to identify any reason to disregard
    that presumption.
    Rosas proposes arguing that his two trial attorneys gave him ineffective assistance.
    In particular Rosas accuses them of failing to explain the consequences of accepting
    responsibility for between 1.5 kilograms and 5 kilograms of methamphetamine; had he
    known that information, he argues, he would not have pleaded guilty. Rosas also asserts
    that his attorneys had a breakdown in communication, gave him conflicting information on
    his potential sentence, and badgered him into signing the plea agreement. But Rosas’s
    appeal waiver bars all claims of ineffective assistance except those relating directly to the
    waiver or its negotiation. To the extent that Rosas’s claim falls within this exception, we
    would decline to address it on direct appeal because claims of ineffective assistance are
    better suited to a collateral action under 
    28 U.S.C. § 2255
     so that a fuller record can be
    developed. See Massaro v. United States, 
    538 U.S. 500
    , 504–05 (2003); United States v.
    Waltower, 
    643 F.3d 572
    , 579 (7th Cir. 2011).
    Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.