United States v. Candelil Rodriguez

NONPRECEDENTIAL DISPOSITION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 February 25, 2013
Decided February 26, 2013
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-2797
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 08-CR-190
MIGUEL ANGEL DELACRUZ-DEJESUS, Rudolph T. Randa,
aka CANDELIL RODRIGUEZ, Judge.
Defendant-Appellant.
ORDER
Miguel Delacruz-DeJesus pleaded guilty to conspiracy to distribute and possess
with intent to distribute cocaine, crack cocaine, and heroin. 21 U.S.C. §§ 846, 841(a)(1). (At
earlier stages of this case, the defendant went by the name Candelil Rodriguez, an alias.)
The district court sentenced the defendant to 174 months’ imprisonment, which was within
the guidelines range of 168 to 210 months. The defendant filed a notice of appeal, but his
appointed attorney has not identified a potentially meritorious issue to pursue and moves
to withdraw. See Anders v. California, 386 U.S. 738 (1967). The defendant has not responded
to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues
discussed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
973–74 (7th Cir. 2002).
No. 12-2797 Page 2
Although counsel does not inform us whether she asked the defendant if he wants
his guilty plea set aside, 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 first considers whether he could raise a
meritorious challenge to the voluntariness of the plea or the adequacy of the plea colloquy.
We agree with counsel that any challenge to the defendant’s guilty plea would be frivolous.
Since the defendant did not seek to withdraw his guilty plea in district court, our review
would be for plain error. See United States v. Tello, 687 F.3d 785, 791 (7th Cir. 2012). During
the plea colloquy the court did not warn the defendant that he could be prosecuted for
perjury if he gave false statements under oath. See FED R. CRIM P. 11(b)(1)(A). Neither did
the court tell the defendant that he could persist with his plea of not guilty, have a lawyer
at every stage of the case, and compel the attendance of witnesses at trial. See id. 11(b)(1)(B),
(D), (E). And the court said nothing concerning the factors guiding its determination of a
sentence. See id. 11(b)(1)(M). Yet none of these omissions affected the defendant’s
substantial rights. See id. 11(h); United States v. Ali, 619 F.3d 713, 718–19 (7th Cir. 2010). The
defendant signed a plea agreement, which alerted him that lying under oath during the
plea colloquy could lead to prosecution for perjury. That document also informed the
defendant that he could compel witnesses to attend a trial and explained how the district
court would determine a sentence. See United States v. Driver, 242 F.3d 767, 771 (7th Cir.
2001). And despite the district court’s omissions, the defendant necessarily was aware of
his rights to counsel and to persist with a plea of not guilty. He was represented by a
lawyer and had been throughout the proceedings, and he already had pleaded not guilty.
See Knox, 287 F.3d at 670; United States v. Lovett, 844 F.2d 487, 491–92 (7th Cir. 1988).
In her Anders submission, counsel also evaluates whether the defendant could argue
that the district court erred in imposing upward adjustments for his role as an organizer or
leader of the drug conspiracy, see U.S.S.G. § 3B1.1(a), and for obstruction of justice,
see id. § 3C1.1. Counsel correctly concludes that any challenge to these adjustments would
be frivolous. In his plea agreement the defendant stipulated to facts identifying him as the
leader of a Milwaukee-area drug conspiracy with more than five distributors working
under his direction, including two women selling from a residence he paid for. At
sentencing the lawyer then representing the defendant acknowledged, correctly, that these
facts support an adjustment under U.S.S.G. § 3B1.1(a). See United States v. Melendez, 467 F.3d
606, 608–09 (7th Cir. 2006); United States v. Hardamon, 188 F.3d 843, 851–52 (7th Cir. 1999). In
addition, the defendant lied about his name and date of birth to investigators and during
his court appearances—including under oath at his plea colloquy—before admitting his
true identity during the presentence interview. Thus he could not present a nonfrivolous
argument that the court erroneously applied an increase for obstruction of justice.
See U.S.S.G. § 3C1.1 cmt. n.4(F); United States v. Bedolla-Zavala, 611 F.3d 392, 394–96 (7th Cir.
2010); United States v. Thomas, 11 F.3d 1392, 1399–1401 (7th Cir. 1993).
No. 12-2797 Page 3
Finally, counsel advises that she combed the record but found no other colorable
basis to challenge the defendant’s sentence. Counsel correctly notes that the defendant was
sentenced to five years of supervised release, the statutory minimum, and that his
Category I criminal history is the lowest possible. And the district court considered the
sentencing factors identified in 18 U.S.C. § 3553(a), focusing on the defendant’s continuous
involvement with drug distribution during his time in this country. Any challenge to the
reasonableness of his within-guidelines sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.