United States v. Celvin Cortez

NONPRECEDENTIAL DISPOSITION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 May 21, 2018
Decided May 24, 2018
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-3106
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 16-cr-40053-001
CELVIN JOSE CORTEZ, Sara Darrow,
Defendant-Appellant. Judge.
ORDER
Celvin Cortez sold drugs to undercover officers on multiple occasions and
eventually was arrested in a restaurant parking lot, where officers found a
semiautomatic pistol in his possession. He pleaded guilty to one count of possessing
with the intent to distribute at least 50 grams of methamphetamine, 21 U.S.C.
§ 841(a)(1), and one count of possessing a firearm in furtherance of drug trafficking,
18 U.S.C. § 924(c)(1)(A). His plea agreement included a waiver of his right to appeal
“any and all issues relating to” his plea agreement, conviction, and sentence. The judge
sentenced Cortez to 135 months on Count 1 and 60 months on Count 2, to be served
consecutively, which was within the recommended Guidelines range of 188
to 235 months. Cortez filed a notice of appeal, but his appointed appellate counsel has
concluded that the appeal is frivolous and moves to withdraw under Anders v.
No. 17-3106 Page 2
California, 386 U.S. 738 (1967). Cortez opposes counsel’s motion. See 7TH CIR. R. 51(b).
Because counsel’s analysis appears to be thorough, we limit our review to the subjects
he discusses and those Cortez raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014).
Counsel begins by asserting that Cortez’s guilty plea was knowing and
voluntary. He does not say, however, if he asked Cortez whether he wants his guilty
plea vacated. If counsel did not consult with Cortez, he should have, and he should
have told us Cortez’s decision. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). That said, we need not
reject counsel’s submission because the transcript of the plea colloquy reflects that the
judge complied with the requirements of Rule 11 of the Federal Rules of Criminal
Procedure. See Konczak, 683 F.3d at 349; United States v. Blalock, 321 F.3d 686, 688
(7th Cir. 2003). The judge properly informed Cortez about the nature of the charge, the
statutory maximum penalties, the trial rights he was giving up, the role of the
sentencing guidelines, and the consequences of the appeal waiver. See FED. R. CRIM.
P. 11(b).
Counsel considers whether the broad appeal waiver that Cortez accepted as part
of his plea agreement makes this appeal frivolous and properly concludes that it does.
An appeal waiver stands or falls with the guilty plea, United States v. Zitt, 714 F.3d 511,
515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), so
Cortez’s waiver must be enforced. Moreover, neither we nor counsel can identify any
exceptions to the appeal waiver that would apply here. See United States v. Adkins,
743 F.3d 176, 192–93 (7th Cir. 2014). Indeed, the sentence on each count does not exceed
the statutory maximum, see 21 U.S.C. § 841(b)(1)(A); 18 U.S.C. § 924(c)(1)(A), and the
judge did not rely on any unconstitutional factor when imposing Cortez’s sentence.
Finally, Cortez argues in his Rule 51(b) response that his sentence was
unreasonable because there was insufficient evidence to show that the gun found by the
police was his. But his appeal waiver is enforceable with regard to all issues within its
scope, including the sufficiency of the evidence supporting the plea.
Thus the motion to withdraw is GRANTED, and the appeal is DISMISSED.