United States v. Delgado, Nelson , 189 F. App'x 539 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006
Decided July 19, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-1937
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division
v.
No. 98-CR-182-2
NELSON DELGADO,
Defendant-Appellant. David H. Coar,
Judge.
ORDER
Nelson Delgado was charged in 1998 with conspiracy to possess heroin with
intent to distribute, see 21 U.S.C. §§ 846, 841(a)(1), but after his release on bond he
absconded and remained a fugitive for more than four years until his arrest in
Miami, Florida. In March 2003, after he was remanded from Florida to the
Northern District of Illinois, Delgado pleaded guilty to the conspiracy charge. In
their written plea agreement, both parties agreed to recommend a sentence at the
low end of the guidelines range or the 10-year minimum mandatory, whichever was
higher, and Delgado waived his right to appeal any sentence “within the maximum
provided by the statute of conviction.”
The plea agreement included no provision for a sentence reduction under
U.S.S.G. § 5K1.1. After Delgado entered his guilty plea, however, the government
No. 05-1937 Page 2
moved for a “downward departure” under that guideline to reflect the help he gave
Florida prosecutors after his return to Illinois. In its motion the government
proposed a sentence equal to 85% of the lower of the statutory minimum or, if
applicable, the bottom of the guidelines range. Delgado, however, responded by
moving in December 2003 to vacate his guilty plea; he essentially contended that
the parties had reached an undisclosed agreement that the assistance he provided
in Florida and to federal authorities investigating unrelated matters in Chicago
would earn him a reduction of 25% to 33% off the statutory minimum or the low end
of the guidelines range. The government replied that the parties had done nothing
more than engage in preliminary discussions about a downward departure. In
January 2004 the district court held a hearing on Delgado’s motion, but before the
court reached a final decision, Delgado changed lawyers and withdrew his challenge
to his guilty plea.
At sentencing the district court calculated an advisory guidelines range of
151 to 188 months’ imprisonment. The court then accepted the government’s
recommendation of a “downward departure” equal to 85% of the bottom of the
guidelines range, or 126 months.
Delgado has filed an appeal, but his appointed appellate counsel moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot
discern a nonfrivolous argument to pursue. We invited Delgado to respond to
counsel’s motion, see Cir. R. 51(b), but he has not. We therefore review only the
potential issues identified by counsel in his facially adequate brief. See United
States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers whether Delgado could argue that his guilty plea
must be set aside, either because of noncompliance with Federal Rule of Criminal
Procedure 11 during the plea colloquy, or because his motion to withdraw the plea
should have been granted. Counsel, though, gives no indication that Delgado any
longer desires that his guilty plea be set aside, and thus counsel should not have
addressed this potential challenge in his Anders submission. See United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002). In any event, counsel’s brief demonstrates
that the district court substantially complied with the requirements of Rule 11. See
United States v. Schuh, 289 F.3d 968, 974-75 (7th Cir. 2002). Moreover, Delgado’s
motion to withdraw his guilty plea could not provide an avenue for appeal. Delgado
abandoned that motion before the district court had finally resolved it, and,
consequently, Delgado ratified his original guilty plea and cured any doubt about
the adequacy of the plea colloquy or the government’s conduct. See United States v.
Darling, 766 F.2d 1095, 1101 (7th Cir. 1985) (“A decision to withdraw a motion to
withdraw a guilty plea is in effect a reaffirmation of the original plea.”); accord Doe
v. United States, 51 F.3d 693, 700-01 (7th Cir. 1993). Thus, we agree with counsel
that a challenge to Delgado’s guilty plea would be frivolous.
No. 05-1937 Page 3
Counsel next considers whether Delgado could challenge his prison term on
unreasonableness grounds, but correctly concludes that any such argument is
precluded by the broad appeal waiver included in his plea agreement. That
agreement provides, with certain exceptions not present here, that Delgado
“knowingly waives the right to appeal any sentence within the maximum provided
by the statute of conviction.” Because the appeal waiver stands or falls with the
guilty plea itself, counsel properly concludes that any argument not reserved in the
appeal waiver would be frivolous. See United States v. Whitlow, 287 F.3d 638, 640
(7th Cir. 2002).
Finally, counsel mentions the possibility of arguing that Delgado did not have
the benefit of constitutionally adequate counsel in the district court. We frequently
have said that claims of ineffective assistance of counsel are more appropriately
raised in a collateral proceeding under 28 U.S.C. § 2255 where the record can be
further developed. See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003);
United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). We see no reason to
deviate from that stance here.
Accordingly, the motion to withdraw is GRANTED, and the appeal is
DISMISSED.