United States v. Drakenold Nguyen , 387 F. App'x 620 ( 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NONPRECEDENTIAL DISPOSITION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 July 13, 2010
Decided July 14, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 09-2428 & 09-2429
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. Nos. 05-CR-228 & 06-CR-163
DRAKENOLD T. NGUYEN, Charles N. Clevert, Jr.,
Defendant-Appellant. Chief Judge.
ORDER
Drakenold Nguyen pleaded guilty to conspiracy to possess and distribute
marijuana, 21 U.S.C. §§ 846, 841(a)(1), and conspiracy to launder the proceeds, 18 U.S.C.
§ 1956(a), (h). His plea agreement resolved indictments in both the Eastern District of
Wisconsin and the Eastern District of Michigan, and includes a waiver of Nguyen’s right to
appeal his sentence except with routine exceptions not relevant here. The district court
imposed concurrent terms of 240 months’ imprisonment. Nguyen has filed a notice of
appeal, but his appointed counsel are unable to find a nonfrivolous basis for the appeal and
have moved to withdraw under Anders v. California, 386 U.S. 738 (1967). Nguyen opposes
dismissal and moves this court to appoint new counsel. See C IR. R. 51(b). We confine our
Nos. 09-2428 & 09-2429 Page 2
review to the potential issues outlined in counsel’s facially adequate brief and Nguyen’s
response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Nguyen now contends that his guilty pleas were involuntary. Accordingly, counsel
first address whether there is any basis to argue that the pleas should be set aside.
See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002). In the district court Nguyen
did not seek to withdraw his pleas; therefore, we would examine the plea colloquy only for
plain error. United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Griffin, 521 F.3d 727,
730 (7th Cir. 2008). Rule 11 of the Federal Rules of Criminal Procedure details the
procedures that a district court must follow when a defendant wishes to plead guilty. FED.
R. C RIM. P. 11(b)(1); United States v. Polak, 573 F.3d 428, 431 (7th Cir. 2009). If the district
court omits an admonishment required by Rule 11, “the defendant must show why the
omission made a difference to him.” United States v. Sura, 511 F.3d 654, 662 (7th Cir. 2007).
Nguyen’s lawyers count four omissions in the change-of-plea colloquy. According
to counsel, the district court did not inform Nguyen that (1) he could be ordered to pay
restitution or to forfeit property, (2) he retained the right to plead not guilty, (3) he could
have court-appointed counsel, and (4) he would waive his right to confront witnesses by
pleading guilty. See FED. R. C RIM. P. 11(b)(1)(J), (K), (B), (D). But counsel are mistaken.
Restitution and forfeiture were not issues in the prosecution, so the district court properly
said nothing about either. Cf. United States v. Fox, 941 F.2d 480, 484 (7th Cir. 1991). And the
court did tell Nguyen that he could persist with his plea of not guilty and had the right to
counsel. The court also described the steps in a trial—including cross-examination of the
government’s witnesses—and warned Nguyen that he would “not have a trial such as I’ve
described” if he pleaded guilty. Moreover, paragraph 31 of the plea agreement lists the
trial rights that Nguyen would give up by pleading guilty, including the right to
confrontation, and during the plea colloquy the court specifically drew Nguyen’s attention
to that paragraph. All of that was enough to satisfy the standard of substantial compliance
with Rule 11. See United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003); United States v.
Blalock, 321 F.3d 686, 688 (7th Cir. 2003).
In his Rule 51(b) response, Nguyen contends that his guilty pleas lacked a factual
basis. But at the change-of-plea colloquy, Nguyen testified under oath at length about his
involvement in a conspiracy to distribute marijuana and launder the drug proceeds
through Canada. Thus, this argument would be frivolous because his testimony was
enough to satisfy the district court that there is a factual basis for the guilty pleas. See FED.
R. C RIM. P. 11(b)(3); Schuh, 289 F.3d at 975.
Nos. 09-2428 & 09-2429 Page 3
Nguyen also asserts that the government rendered his guilty pleas involuntary by
not informing the district court of the nature and extent of his cooperation and by violating
a purported agreement to limit his prison sentence to ten years. The plea agreement does
not include any term limiting the length of Nguyen’s prison sentence, and during the plea
colloquy he assured the district court that no promises had been made to him beyond what
is in the written agreement. Any argument that his prison sentence is longer than what he
was promised is thus beyond the scope of this direct appeal, and even in a post-conviction
proceeding, Nguyen will face a presumption that his statements to the court during the
colloquy were truthful. See Sura, 511 F.3d at 662; United States v. Stewart, 198 F.3d 984, 987
(7th Cir. 1999). As for cooperation, Nguyen is correct that under the plea agreement the
government promised to advise the district court of the nature and extent of his
cooperation. But there is no evidence in the record that Nguyen had cooperated with the
government in its investigation of his case or any related matter, nor does Nguyen assert in
his Rule 51(b) response that he cooperated. See United States v. Jones, 209 F.3d 991, 997-98
(7th Cir. 2000).
Finally, Nguyen asserts that the lawyer who negotiated the plea agreement
provided ineffective assistance though he does not explain how his lawyer’s performance
was deficient. A claim of ineffective assistance is best raised on collateral review where a
complete record can be developed. Massaro v. United States, 538 U.S. 500, 504-05 (2003);
United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005).
Nguyen’s plea agreement includes an unambiguous waiver of his right to appeal his
sentence. An appeal waiver stands or falls with the plea agreement, and because we
conclude that any challenge to Nguyen’s guilty pleas would be frivolous, the waiver is
enforceable. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008); United States v.
Linder, 530 F.3d 556, 561 (7th Cir. 2008).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeals.
We DENY Nguyen’s motion for appointment of new counsel.