United States v. Alejandro Villa-Gome , 400 F. App'x 104 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 November 4, 2010
Decided November 9, 2010
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-2007
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:09-CR-30100-001-WDS
ALEJANDRO VILLA-GOMEZ, William D. Stiehl,
Defendant-Appellant. Judge.
ORDER
Alejandro Villa-Gomez pleaded guilty to one count of conspiracy to possess and
distribute cocaine and two counts of distribution. See 21 U.S.C. §§ 841(a)(1), 846. The
district court sentenced him to a total of 168 months’ imprisonment. Villa-Gomez filed a
notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Villa-Gomez has not
responded to counsel’s motion. See C IR. R. 51(b). We confine our review 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).
Villa-Gomez has not indicated that he wants his guilty pleas set aside, so counsel
appropriately omits discussion of possible challenges to the plea colloquy or the
No. 10-2007 Page 2
voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002).
Counsel does evaluate, however, one potential argument that touches on the plea colloquy:
whether Villa-Gomez could argue that translation errors during the colloquy undermined
the accuracy of the information relied upon by the district court at sentencing. Villa-Gomez,
a Mexican national, speaks limited English, and at sentencing he recanted admissions made
during the plea hearing (and previously confirmed in a signed stipulation). Villa-Gomez
had acknowledged that he engaged in multiple cocaine transactions with his codefendant
during the charged conspiracy, that he also was guilty of the substantive distribution
charges, and that the conspiracy involved more than 5 kilograms of cocaine. As we
understand counsel’s submission, Villa-Gomez apparently now contends that the official
court interpreter caused him to unwittingly make these admissions, which he now
contends are untrue. Counsel is correct, however, that this claim necessarily would be
frivolous if made on direct appeal because there is no record support for it. See United
States v. Johnson, 248 F.3d 655, 663 (7th Cir. 2001); United States v. Cirrincione, 780 F.2d 620,
634 (7th Cir. 1985). Indeed the record refutes Villa-Gomez’s effort to blame the interpreter
for his in-court admissions. Before the plea colloquy, Villa-Gomez already had executed
both Spanish and English versions of the stipulation, in which he admits both his guilt and
the drug quantity. Counsel does not suggest that the two versions differ. Nor has Villa-
Gomez said that he cannot read Spanish, so his signature on the Spanish-language version
undercuts his allegation that he misunderstood the interpreter when the English version
was recited and translated during the plea colloquy. Villa-Gomez never suggested during
the colloquy that he was confused about the proceeding or the admissions he was making;
only when he later reviewed the presentence investigation report (with an interpreter) did
Villa-Gomez first complain about the competency of the interpreter who was present
during the colloquy.
Counsel next considers but rejects as frivolous an argument that the district court
erred by refusing Villa-Gomez an offense-level reduction for acceptance of responsibility,
U.S.S.G. § 3E1.1, and instead imposing an increase for obstruction of justice, id. § 3C1.1. But
we would review the court’s underlying factual determinations at sentencing for clear
error, United States v. Williams, 553 F.3d 1073, 1081 (7th Cir. 2009); United States v. Krasinski,
545 F.3d 546, 554 (7th Cir. 2008); United States v. King, 506 F.3d 532, 535 (7th Cir. 2007), and
the record refutes any argument Villa-Gomez might advance. He recanted a stipulation to
his guilt and to the drug quantity that was “even better than a jury’s finding beyond a
reasonable doubt.” See United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002). That
stipulation was backed by drug transactions between Villa-Gomez and government
informants, along with surveillance, voice recordings, information from his codefendant
and others, and even Villa-Gomez’s own post-arrest interviews. And yet at sentencing
Villa-Gomez testified that he was not involved in any drug dealing and did nothing other
No. 10-2007 Page 3
than transport some currency of unknown origin—$90,000 was seized from his car during
the investigation—for a friend who might have been a drug dealer. We would uphold an
obstruction increase where the district court properly concluded that a defendant willfully
provided false testimony regarding a material issue, see United States v. Johnson, 612 F.3d
889, 893 (7th Cir. 2010); United States v. Bryant, 557 F.3d 489, 501 (7th Cir. 2009), and
acceptance of responsibility reductions rarely, if ever, accompany obstruction increases,
U.S.S.G. § 3E1.1 cmt. n.4.
Finally, counsel evaluates whether Villa-Gomez could argue that the district court
should have imposed a prison sentence below the 10-year mandatory minimum. But once
the district court concluded that the conspiracy involved at least 5 kilograms of cocaine, the
10-year statutory minimum applied. See 21 U.S.C. § 841(b)(1)(A); United States v. James, 487
F.3d 518, 530 (7th Cir. 2007). And counsel identifies no provision that would have
permitted the district court to deviate from that minimum. Villa-Gomez was ineligible for a
“safety valve” reduction, see 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2, and the government did
not move for a reduced sentence for cooperation, 18 U.S.C. § 3553(e); Melendez v. United
States, 518 U.S. 120, 125-26 (1996); United States v. Burnside, 588 F.3d 511, 521 n.5 (7th Cir.
2009).
Accordingly, we G RANT counsel’s motion to withdraw and D ISMISS the appeal.