United States v. Arroyo, Ruben , 219 F. App'x 516 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 March 8, 2007
Decided March 12, 2007
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2850
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 4:05CR40028-001-JPG
RUBEN ARROYO
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Ruben Arroyo, with the help of several others, distributed various drugs
throughout southern Illinois. Following an investigation into their activities,
Arroyo and four co-defendants were charged with distributing and conspiring to
distribute cocaine base, cocaine, and methamphetamine. See 21 U.S.C. §§ 841(a)(1),
846. Arroyo pleaded guilty to all six counts in which he was named, but now
appeals. His newly appointed appellate lawyers seek to withdraw under Anders v.
California, 386 U.S. 738 (1967), because they are unable to discern a nonfrivolous
issue to pursue. We agree, and thus grant counsels’ motion to withdraw and
dismiss this appeal.
No. 06-2850 Page 2
The district court appointed a lawyer for Arroyo, but initially he expressed
displeasure with counsel’s advocacy and moved for substitute counsel. At a hearing
on this motion, Arroyo informed the court that he was trying to hire his own lawyer,
and the court allowed him an additional week to secure representation but denied
the motion for new counsel. Two weeks later Arroyo told the court that he was fully
satisfied with his appointed lawyer’s representation and pleaded guilty without a
plea bargain. After ensuring that Arroyo’s pleas were voluntary, the court accepted
them.
Before sentencing the probation officer estimated that Arroyo’s distribution
network had sold the equivalent of more than 30,000 kilograms of marijuana. Not
only did his four co-defendants run drugs for Arroyo, but Arroyo also used two
minors to distribute drugs. He also owned an assault rifle that he kept at his
residence where the drugs were stored and sold. Additionally, the probation officer
documented Arroyo’s two convictions for driving an uninsured vehicle, each of
which resulted in a sentence of one year of court supervision. At sentencing one of
Arroyo’s co-defendants testified that he helped Arroyo buy the rifle and frequently
saw Arroyo carry it at his residence. A minor also testified that she sold drugs
supplied to her by Arroyo and saw the rifle when she received the drugs from him.
Based on this evidence, the district court concluded that Arroyo’s guidelines
imprisonment range was 360 months to life and sentenced him to a total of 420
months.
Counsel’s supporting brief is facially adequate, and Arroyo has responded to
our invitation under Circuit Rule 51(b) to comment on counsel’s submission. We
limit our review to the potential issues identified in counsel’s brief and Arroyo’s
response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Arroyo could argue that the district court
abused its discretion in denying his request for substitute counsel. Ordinarily, in
deciding whether the district court abused its discretion, we would
consider—among other factors—whether the tension between Arroyo and counsel
was so great that it resulted in a total lack of communication preventing an
adequate defense. See United States v. Huston, 280 F.3d 1164, 1167 (7th Cir. 2002).
But in this instance Arroyo effectively abandoned any concern about appointed
counsel’s continued representation. During the change-of-plea hearing, Arroyo
stated that he reviewed his indictment and the guidelines with counsel and that he
was fully satisfied with counsel’s representation and advice. Since Arroyo admitted
his satisfaction with the communication between him and counsel, we agree that
any challenge to the district court’s denial of Arroyo’s motion for substitute counsel
would be frivolous. See United States v. Bjorkman, 270 F.3d 482, 501 (7th Cir.
2001) (concluding that defendant’s admission during plea hearing that he was
satisfied with counsel’s representation demonstrates adequate communication
No. 06-2850 Page 3
between counsel and defendant); Bridgeman v. United States, 229 F.3d 589, 592
(7th Cir. 2000) (presuming truthfulness of statements made during change-of-plea
hearing).
Counsel next considers whether Arroyo could argue that his guilty pleas
must be set aside as involuntary. This potential issue is properly considered
because counsel has verified that Arroyo wants his pleas set aside. See United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But any challenge based on
purported noncompliance with Federal Rule of Criminal Procedure 11 would be
reviewed for plain error because Arroyo did not move to withdraw his pleas in the
district court. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006).
We agree with counsel that such a challenge would be frivolous. The district
court informed Arroyo of his right to plead not guilty and explained the charges,
possible penalties, and the rights Arroyo would give up by pleading guilty. The
court also confirmed that there was an adequate factual basis for Arroyo’s pleas and
ensured that he was not pleading under perceived pressure or coercion. According
to counsel, Arroyo wants out of his guilty pleas because he is dissatisfied with his
sentence, but a guilty plea is no less voluntary just because the defendant becomes
disgruntled about the outcome at sentencing. See United States v. Jones, 381 F.3d
615, 619 (7th Cir. 2004).
Both counsel and Arroyo question whether Arroyo might argue that the
district court improperly added points to his criminal history score based on two
convictions for driving an uninsured vehicle. In Arroyo’s view, driving an uninsured
vehicle is similar to a “minor traffic infraction” and thus should not be counted. See
U.S.S.G. § 4A1.2(c)(2). But we have held otherwise, concluding that the violation is
more akin to driving without a license and, like that offense, yields one criminal
history point if the sentence was at least one year of probation. United States v.
Boyd, 146 F.3d 499, 501-02 (7th Cir. 1998); see U.S.S.G. § 4A1.2(c)(1). Arroyo each
time was sentenced to one year of “court supervision,” but the nomenclature makes
no difference; we have held that court supervision “is equivalent” to probation for
purposes of § 4A1.2(c)(1). Boyd, 146 F.3d at 502; see United States v. Jones, 448
F.3d 958, 960 (7th Cir. 2006). In any event, even if the court ignored these
convictions, Arroyo’s guidelines range would not have changed; at a total offense
level of 42, the imprisonment range remains 360 months to life even in the lowest
criminal history category. See U.S.S.G. § 5A. Accordingly, the potential argument
is frivolous.
After reviewing the district court’s remaining guidelines calculations, counsel
could identify no potential issues for appeal. However, Arroyo, in his Rule 51(b)
response, proposes to argue that the district court miscalculated the drug quantity.
No. 06-2850 Page 4
Arroyo thinks the court set the drug amount at more than 30,000 kilograms of
cocaine, but in fact, the court found that the various drugs dealt by Arroyo were
equivalent to over 30,000 kilograms of marijuana. See U.S.S.G. § 2D1.1 cmt. nn.6,
10. Arroyo admitted at his change-of-plea hearing that the conspiracy involved well
over 50 grams of crack, and that just two of the distribution counts, which stemmed
from controlled buys, involved over 150 grams of crack and over 160 grams of pure
methamphetamine. These admissions alone triggered a possible life sentence by
statute. See 21 U.S.C. §§ 841(b)(1)(A)(iii), (viii); United States v. Castillo, 406 F.3d
806, 822-23 (7th Cir. 2005). Thus, as Arroyo acknowledges, the government needed
to prove the drug quantity only by a preponderance of the evidence. See
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Arroyo’s
admissions regarding the 10-month conspiracy, along with the presentence
investigation report and witness testimony support the quantity calculation, and
Arroyo’s contention that there is “no basis to support” this calculation is without
merit. See United States v. Krankel, 164 F.3d 1046, 1054-55 (7th Cir. 1998).
Finally, Arroyo would argue that it was for a jury, not the sentencing court,
to decide whether he played a leadership role in the conspiracy, see U.S.S.G.
§ 3B1.1(b), and possessed an assault rifle, see id. § 2D1.1(b)(1). It is settled, though,
that the court makes such findings for purposes of determining the guidelines
range. See, e.g., United States v. Booker, 543 U.S. 220, 245-46 (2005); United States
v. Hale, 448 F.3d 971, 988-89 (7th Cir. 2006); United States v. Belk, 435 F.3d 817,
819 (7th Cir. 2006). Moreover, these increases were supported by ample evidence in
the form of witness testimony and the presentence report. During the plea
colloquy, Arroyo admitted that he directed others involved in the conspiracy to
transport large quantities of drugs from Chicago to southern Illinois so that he
could re-distribute and sell the drugs through his network. The government
demonstrated that the rifle was discovered at Arroyo’s residence where he stored
and sold drugs, and Arroyo points to no evidence to the contrary. See U.S.S.G.
§ 2D1.1(b)(1), cmt. n.3 (explaining that firearm adjustment applies if “the weapon
was present, unless it is clearly improbable that the weapon was connected with the
offense); United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000) (noting that
firearm adjustment applies if defendant possessed firearm “in the course of the
conspiracy”). This evidence supports the increases in his offense level, and any
argument to the contrary would be frivolous.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
Arroyo’s motion for substitute counsel is DENIED.