United States v. Edgardo Lopez-Arroyo ( 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NONPRECEDENTIAL DISPOSITION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 May 22, 2013
Decided May 23, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-2025
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 CR 46-2
EDGARDO LOPEZ-ARROYO,
Defendant-Appellant. George W. Lindberg,
Judge.
ORDER
Edgardo Lopez-Arroyo pleaded guilty to conspiring to distribute cocaine. See 21
U.S.C. §§ 846, 841(a)(1). The district court calculated a guidelines range of 108 to 135
months’ imprisonment, and sentenced him to 120 months, the statutory minimum for
participating in a conspiracy that involved at least 5 kilograms of cocaine (as he admitted
during his plea colloquy). See id. § 841(b)(1)(A)(ii)(II). Arroyo filed a notice of appeal, but
his appointed lawyer asserts that the possible appellate claims are frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Arroyo opposes this motion
and requests the appointment of new counsel. See CIR. R. 51(b). We confine our review to
No. 12-2025 Page 2
the potential issues identified in counsel's facially adequate brief and Arroyo’s response.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel advises us that Arroyo does not wish to challenge his guilty plea, so
counsel properly omits from her brief any discussion about the plea colloquy or 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, 670–71 (7th Cir. 2002).
Counsel and Arroyo both consider whether Arroyo might argue that he was denied
his right to a speedy trial. But as counsel correctly notes, Arroyo’s unconditional guilty plea
waived “all nonjurisdictional defects arising before his plea,”United States v. Combs, 657
F.3d 565, 568 (7th Cir. 2011), including any speedy-trial claim, see United States v. Jackson,
697 F.3d 1141, 1144 (9th Cir. 2012); Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008);
Washington v. Sobina, 475 F.3d 162, 165-66 (3d Cir. 2007); see also Danks v. Davis, 355 F.3d
1005, 1008 (7th Cir. 2004).
Counsel and Arroyo both discuss whether the district court properly applied a
two-level upward adjustment for possession of a gun during the commission of the offense.
See U.S.S.G. § 2D1.1(b)(1). The court applied the adjustment because Arroyo admitted (in a
statement to investigating officers following his arrest) that he had a gun with him in his
car during a meeting with an undercover officer to reclaim an advance payment for a failed
drug transaction. As counsel explains, any challenge to that ruling would be frivolous.
“Guns found in close proximity to drug activity are presumptively connected to that
activity,” United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005), and Arroyo admitted
having the gun with him during a drug transaction. Arroyo also did not show that it was
“clearly improbable” that the gun was connected with the offense, United States v.
McCauley, 659 F.3d 645, 652 (7th Cir. 2011); the district court was not required to accept
Arroyo’s explanation that he purchased the gun to protect himself from anonymous callers
rather than others in the drug trade, see United States v. Cruz-Rea, 626 F.3d 929, 938 (7th Cir.
2010) (not “clearly improbable” that guns were connected to offense despite defendant’s
assertion that he possessed guns only for resale).
Counsel also addresses whether Arroyo could challenge the reasonableness of his
10–year prison sentence. But that term reflects the statutory minimum for Arroyo’s crime.
See 21 U.S.C. § 841(b)(1)(A)(ii)(II). The district court could not have gone lower because the
government did not move for a reduction under 18 U.S.C. § 3553(e), and Arroyo was not
eligible for the “safety valve” given the adjustment for possession of a handgun, see id.§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2); McCauley, 659 F.3d at 648 n.2.
No. 12-2025 Page 3
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED. Because
we agree with counsel that an appeal would be frivolous, we DENY Arroyo’s request for
substitute counsel.