NONPRECEDENTIAL DISPOSITION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 August 28, 2012
Decided September 10, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐3908
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 1033‐1
MANUEL RAMOS,
Defendant‐Appellant. Charles R. Norgle,
Judge.
O R D E R
Manuel Ramos pleaded guilty to conspiring to possess and distribute heroin. See
21
U.S.C. §§ 846, 841(a)(1). He would have faced a statutory minimum prison term of 20 years
because the conspiracy involved well over a kilogram of heroin and he already had a felony
drug conviction, but the government withdrew the recidivism enhancement in exchange for
Ramos’ guilty plea. See
id. §§ 841(b)(1)(A)(ii), 851. Even without the enhancement Ramos
was subject to a 10‐year statutory minimum, which is what the district court imposed.
Ramos filed a notice of appeal, but his appointed lawyer contends that the appeal is
frivolous and seeks to withdraw under Anders v. California,
386 U.S. 738 (1967). Ramos did
not respond to counsel’s motion. See CIR. R. 51(b). Our review is confined to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968,
No. 11‐3908 Page 2
973–74 (7th Cir. 2002).
Counsel first addresses whether Ramos could challenge the adequacy of the plea
colloquy or the voluntariness of his guilty plea. Yet counsel also tells us that Ramos does not
want to contest his guilty plea, which means that counsel should not have explored this
potential issue. See United States v. Vallar,
635 F.3d 271, 289 (7th Cir. 2011); United States v.
Cano‐Rodriguez,
552 F.3d 637, 638 (7th Cir. 2009); United States v. Knox,
287 F.3d 667, 671–72
(7th Cir. 2002).
According to counsel Ramos does want to contest the voluntariness of the confession
he gave police after his arrest, but counsel concludes that such a challenge would be
frivolous, and we agree. Counsel’s analysis, however, misguidedly asks whether Ramos’
plea agreement contains an explicit waiver of his appellate rights. No explicit waiver is
required: A guilty plea, even without a plea agreement, forecloses inquiry into any pre‐plea,
nonjurisdictional issues that the defendant has not specifically reserved the right to raise on
appeal, see Tollett v. Henderson,
411 U.S. 258, 266–67 (1973); United States v. Combs,
657 F.3d
565, 568–69 (7th Cir. 2011), including claims relating to the voluntariness of a confession, see
Gomez v. Berge,
434 F.3d 940, 942–43 (7th Cir. 2006) (citing McMann v. Richardson,
397 U.S.
759 (1970)). Because Ramos does not seek to withdraw his guilty plea, the only relevant
question about his plea agreement is whether it explicitly reserved his right to challenge the
voluntariness of his confession on appeal. It did not, and so any challenge to the
voluntariness of the confession would be frivolous.
Counsel also addresses whether Ramos could mount a nonfrivolous challenge to his
10‐year prison sentence, correctly concluding that he could not. As Ramos acknowledged in
his plea agreement, his crime carries a minimum sentence of 10 years because the amount of
heroin involved was at least a kilogram. See
21 U.S.C. § 841(b)(1)(A)(i). The district court
could not have gone lower unless Ramos had been eligible for the “safety valve,”
see
18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a), which allows for relief from the statutory
minimum for drug offenders who meet specific criteria. One requirement is that the
offender have no more than one criminal‐history point, see United States v. Jones,
448 F.3d
958, 959 (7th Cir. 2006), and Ramos, whose past crimes had earned him two criminal‐history
points, was ineligible.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
