United States v. Mario Carbajal ( 2017 )


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  •                         NONPRECEDENTIAL DISPOSITION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 31, 2017
    Decided November 3, 2017
    Before
    DIANE P. WOOD, Chief Judge
    JOEL M. FLAUM, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    No. 16-4164
    UNITED STATES OF AMERICA,                        Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Northern District
    of Illinois, Eastern Division.
    v.
    No. 14 CR 561-1
    MARIO BARJAS CARBAJAL,
    Defendant-Appellant.                         Samuel Der-Yeghiayan,
    Judge.
    ORDER
    Mario Barjas Carbajal began sexually abusing his stepdaughter when she was
    seven years old. Over the next seven years, he beat her whenever she refused his
    advances or tried to get help, and he impregnated her three times (the first and third
    pregnancies resulted in the birth of a child; the second ended in a miscarriage when he
    punched her in the stomach). At one point he evaded authorities by fleeing Virginia
    with the girl and their family. Carbajal pleaded guilty to crossing state lines with intent
    to engage in a sexual act with a minor under 12 years of age, see 18 U.S.C. § 2241(c), and
    was sentenced to 55 years’ imprisonment, below the guidelines term (and statutory
    maximum) of life imprisonment.
    No. 16-4164                                                                          Page 2
    Carbajal filed a notice of appeal, but his appointed lawyer asserts that the appeal
    is frivolous and seeks to withdraw. See Anders v. California, 
    386 U.S. 738
    (1967).
    Carbajal filed a copy of a letter that he sent to counsel disagreeing with her proposal to
    submit an Anders brief, and we construe that filing as his opposition to counsel’s
    motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses
    the issues that an appeal of this kind might involve. Because the analysis in counsel’s
    brief appears to be thorough, we limit our review to the subjects that she discusses and
    that Carbajal identifies in his submission. See United States v. Bey, 
    748 F.3d 774
    , 776
    (7th Cir. 2014); United States v. Wagner, 
    103 F.3d 551
    , 553 (7th Cir. 1996).
    Counsel first tells us that she has consulted with Carbajal, and he wants his
    guilty plea set aside, and so she considers challenging whether the plea was knowing
    and voluntary. See United States v. Konczak, 
    683 F.3d 348
    , 349 (7th Cir. 2012);
    United States v. Knox, 
    287 F.3d 667
    , 671 (7th Cir. 2002). She and Carbajal both consider,
    for instance, whether he could argue that he did not understand the plea proceedings
    (his native language is Spanish). Carbajal asserts, specifically, that he did not
    comprehend that he could be sentenced to a “draconian” prison term (he says that he
    thought he was pleading guilty in exchange for a “presumed ten-year sentence”).
    But counsel properly concludes that any challenge to the voluntary or knowing
    nature of the plea would be frivolous. As Carbajal’s responses (via a translator) at the
    plea colloquy reflect, he did not have trouble understanding the proceedings. The judge
    informed Carbajal of the potential penalties, including a minimum sentence of 30 years
    and a maximum of life, and explained that the court would have to calculate and
    consider the guidelines range before choosing a sentence. See FED. R. CRIM. P.
    11(b)(1)(H)–(I), (M). As required under Federal Rule of Criminal Procedure 11, the
    judge also advised Carbajal of the nature of the charge, the trial rights he was waiving,
    and the risk of removal. See FED. R. CRIM. P. 11(b)(1); United States v. Davenport, 
    719 F.3d 616
    , 618 (7th Cir. 2013). Additionally, the judge ensured that an adequate factual basis
    for Carbajal’s guilty plea existed and that he entered into the plea voluntarily.
    See FED. R. CRIM. P. 11(b)(2)–(3). The court omitted only one item: it did not tell Carbajal
    that his sworn statements during the colloquy could be used in a perjury prosecution,
    see FED. R. CRIM. P. 11(b)(1)(A), but that error was harmless because no prosecution is
    pending or anticipated. See United States v. Blalock, 
    321 F.3d 686
    , 689 (7th Cir. 2003);
    United States v. Graves, 
    98 F.3d 258
    , 259 (7th Cir. 1996).
    Carbajal relatedly suggests that the district court erred by not informing him at
    the plea colloquy that, as a Mexican citizen, he had a right to communicate with the
    No. 16-4164                                                                            Page 3
    Mexican consulate. Article 36 of the Vienna Convention on Consular Relations,
    Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, provides that arresting authorities must
    inform a foreign national upon his arrest that he has a right to contact his consulate.
    See Mordi v. Ziegler, 
    770 F.3d 1161
    , 1162 (7th Cir. 2014); Sandoval v. United States, 
    574 F.3d 847
    , 850 (7th Cir. 2009). Because the obligation to inform a foreign national of his rights
    under the Vienna Convention rests solely with the arresting authority (here, the federal
    government), and not the court, it would be frivolous for Carbajal to argue that the
    district court erred by not informing him of those rights. See 
    Sandoval, 574 F.3d at 850
    .
    Next counsel considers whether Carbajal could challenge his sentence but
    properly concludes that an appellate claim would be frivolous. Carbajal’s
    55-year sentence is presumed reasonable because it is below the correctly calculated
    guidelines term (life imprisonment, based on a total offense level of 48, capped at 43,
    and a criminal history category of I). See Rita v. United States, 
    551 U.S. 338
    , 347 (2007);
    United States v. Mbaye, 
    827 F.3d 617
    , 622 (7th Cir. 2016). We agree with counsel that the
    record provides no basis to disturb this presumption. The court adequately addressed
    the sentencing factors in 18 U.S.C. § 3553(a) before arriving at a sentence. It focused on
    Carbajal’s history and characteristics (difficult upbringing, current age, and diminutive
    stature), his need for training or treatment (sex-offender treatment), and the nature of
    the crime (traumatic, ongoing rape of a child for years). The court also discussed the
    need to promote respect for the law and for deterrence, remarking that Carbajal had
    flouted both federal and state laws by remaining in the United States illegally and
    evading authorities to continue his crime and that it was important to deter others from
    engaging in similar conduct.
    Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
    

Document Info

Docket Number: 16-4164

Judges: Wood, Flaum, Sykes

Filed Date: 11/3/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024