United States v. Mario Caviedes-Zuniga ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1104
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO CAVIEDES-ZUNIGA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-CR-00197(1) — Robert W. Gettleman, Judge.
____________________
SUBMITTED JANUARY 21, 2020 — DECIDED JANUARY 27, 2020
____________________
Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit
Judges.
EASTERBROOK, Circuit Judge. Mario Caviedes-Zuniga
pleaded guilty to distributing 140 grams of heroin. 21 U.S.C.
§841(a)(1), (b)(1)(B). He was sentenced to 111 months’ im-
prisonment, a term 77 months below the low end of the
range (188 to 235 months) recommended by the Sentencing
Guidelines. After filing a notice of appeal, he told his lawyer
that he wants a trial. He also told counsel that he does not
2 No. 19-1104
wish to contest his sentence, if the conviction remains in
place. Counsel evaluated the potential arguments and has
asked to withdraw, representing that he deems the appeal
frivolous. See Anders v. California, 386 U.S. 738 (1967). Ca-
viedes-Zuniga received a copy of this submission but did not
respond. See Circuit Rule 51(b).
Before filing motions and briefs under Anders, criminal-
defense lawyers should find out whether their clients wish
to contest their guilty pleas. See, e.g., United States v. Konczak,
683 F.3d 348 (7th Cir. 2012); United States v. Knox, 287 F.3d
667 (7th Cir. 2002). As those decisions explain, a plea bargain
may provide a defendant with substantial benefits—for ex-
ample, dismissal of some counts of an indictment, a sentence
reduction for accepting responsibility, or a concession by the
prosecutor about the quantity of drugs or financial loss
aeributable to the defendant’s course of conduct—that
would be lost if the plea were withdrawn on grounds such
as a district judge’s failure to provide all of the advice re-
quired by Fed. R. Crim. P. 11. Before presenting arguments
that could make the defendant worse off, we held, counsel
should obtain the defendant’s informed consent to the risks.
If the defendant is content to let the guilty plea stand, coun-
sel need not advance or discuss potential ways to have the
plea vacated. “Appellate lawyers are not obliged to raise is-
sues that could boomerang on their clients; it is no failure of
advocacy to leave well enough alone.” Knox, 287 F.3d at 671.
Caviedes-Zuniga’s lawyer contends that the same princi-
ple applies to sentencing, for a successful effort to upset a
sentence may harm a defendant. See, e.g., United States v.
Masters, 978 F.2d 281 (7th Cir. 1992). Caviedes-Zuniga’s situ-
ation shows why. His sentence, years below the lower bound
No. 19-1104 3
of the applicable range, easily could rise on remand. The dis-
trict court gave him substantial credit for accepting respon-
sibility. A judge might well reconsider that discount on
learning that on appeal Caviedes-Zuniga tried to have the
plea vacated, even if the aeempt failed. The district judge
also observed that Caviedes-Zuniga had been induced by his
family to enter the drug trade, had spent time in pretrial de-
tention (in Colombia as well as the United States), and had
assisted a prosecutor in Florida during an investigation of
counterfeiting. If we were to vacate the sentence, the case
could be reassigned to a judge who would weigh these
maeers less favorably to Caviedes-Zuniga. And of course
new criminal conduct (or misconduct in prison) might come
to light before a resentencing, affecting the Guidelines’ range
or the appropriate exercise of discretion.
A challenge to a sentence, no less than a challenge to the
validity of a guilty plea, carries risks as well as conceivable
benefits for a defendant. Lawyers therefore must ensure that
a defendant understands these risks and makes an informed
choice whether to contest the sentence. Counsel assures us
that he discussed the risks and benefits with Caviedes-
Zuniga, who decided not to dispute his sentence. It was ac-
cordingly unnecessary for counsel to discuss, under the An-
ders procedure, potential arguments in support of resentenc-
ing, and it is also unnecessary for us to discuss them.
As we mentioned earlier, Caviedes-Zuniga did ask his
lawyer to challenge the guilty plea. Counsel reviewed sever-
al potential arguments but concluded that all are frivolous.
For the reasons given in a nonprecedential order issued con-
temporaneously with this opinion, we agree with counsel’s
4 No. 19-1104
assessment. We therefore grant counsel’s motion to with-
draw and dismiss the appeal as frivolous.