United States v. Zeferino Aurelia ( 2021 )

NONPRECEDENTIAL DISPOSITION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 October 20, 2021
Decided October 20, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21-1442
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v. No. 4:20-CR-40020-JPG-1
ZEFERINO CELSO MORALES J. Phil Gilbert,
AURELIA, Judge.
Defendant-Appellant.
ORDER
Zeferino Celso Morales Aurelia pleaded guilty to attempting to entice a minor to
engage in sexual activity, see 18 U.S.C. § 2422(b), and was sentenced to the mandatory
minimum of 120 months in prison. He appeals, but counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). With the
assistance of a fellow prisoner, Morales Aurelia opposes the motion. See CIR. R. 51(b).
No. 21-1442 Page 2
Counsel’s brief explains the nature of the case and addresses potential issues that an
appeal of this kind might involve. Because their analysis appears thorough, we limit our
review to the issues that she and Morales Aurelia discuss. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Counsel begins by evaluating the validity of the plea but does not discuss
whether she consulted Morales Aurelia about the risks of challenging his plea. See
United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The omission is harmless,
however, because the record shows, and counsel correctly concludes, that any challenge
to his plea would be frivolous. Id. Morales Aurelia did not move to withdraw his plea in
the district court, so we would review the district court’s acceptance of it for plain error.
United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). No arguable plain error
occurred here. Following Rule 11 of the Federal Rules of Criminal Procedure, the
district court explained the nature of the charge, informed Morales Aurelia of potential
penalties (including immigration consequences), determined the factual basis for his
plea, and confirmed that his decision was knowing and voluntary. The court did so by
providing Morales Aurelia, who comes from a Mixteco-speaking community in Mexico,
with a Spanish-language interpreter. During the plea colloquy, Morales Aurelia
confirmed that he understood the proceedings. Although he now says that he
sometimes had to strain to understand the interpreter’s Spanish, Morales Aurelia does
not argue that he was unable to follow the proceedings. Thus, any challenge that the
plea was not knowing and voluntary would be frivolous.
Counsel next considers, and correctly rejects, a potential challenge to the
substantive reasonableness of the 120-month prison sentence. Counsel does not state
whether she discussed with Morales Aurelia the risks of such a challenge. See United
States v. Caviedes-Zuniga, 948 F.3d 854, 856 (7th Cir. 2020). But again, any challenge
would be pointless. Morales Aurelia did not object to the presentence investigation
report, or the court’s adoption of its recommended Guideline range of 120 months to
life in prison. More importantly, the conviction carries a mandatory minimum sentence
of 120 months in prison. 18 U.S.C. § 2422(b). Thus, “[h]is sentence could not be lower if
he were resentenced.” United States v. Melvin, 948 F.3d 848, 854 (7th Cir. 2020).
Finally, both counsel and Morales Aurelia consider raising the issue of ineffective
assistance of counsel on direct appeal. But an ineffective-assistance claim, which
generally requires evidence outside of the record, is better suited to a collateral attack
rather than a direct appeal. United States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
Counsel also represented Morales Aurelia in the district court and would be ill-
No. 21-1442 Page 3
positioned to argue that her own performance was deficient. See United States v. Rezin,
322 F.3d 443, 445 (7th Cir. 2003).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.