United States v. Castro-Rodriguez, Ne

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2005*
Decided December 14, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1269
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 04-CR-90
NELSON CASTRO-RODRIGUEZ,
Defendant-Appellant. Charles N. Clevert, Jr.,
Judge.
ORDER
In 1999, Nelson Castro-Rodriguez pleaded guilty to marijuana trafficking, an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B), and was sentenced to 16 months’
imprisonment. He was later removed to Mexico, where he is a citizen, but then re-
entered the United States illegally. Once law enforcement authorities captured
him, Castro-Rodriguez pleaded guilty to being present in the United States after
removal for an aggravated felony conviction, 8 U.S.C. §§ 1326(a), (b)(2). The district
court, considering the guidelines advisory in light of the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005), sentenced him to 46 months’
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1269 Page 2
imprisonment and three years’ supervised release, the lowest end of the guidelines
range. Castro-Rodriguez has now appealed, but his appointed attorney moves to
withdraw because he cannot discern any nonfrivolous issue. See Anders v.
California, 386 U.S. 738 (1967). We informed Castro-Rodriguez that he could
respond to counsel’s motion, see Cir. R. 51(b), but he has not done so. Our review is
thus limited to the points discussed in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Castro-Rodriguez pleaded guilty under an agreement in which he waived the
right to appeal his conviction and sentence—except to argue that his punishment
exceeded the statutory maximum, that the sentencing court relied on any
constitutionally impermissible factor, or that he received ineffective assistance of
counsel. An appeal waiver entered into knowingly and voluntarily is valid and
binding. United States v. Mason, 343 F.3d 893, 893-94 (7th Cir. 2003). Waivers of
appeal stand or fall with the guilty plea itself, and thus Castro-Rodriguez’s
unambiguous waiver bars appeal on any grounds except those delineated by the
waiver so long as his guilty plea was entered into knowingly and voluntarily.
United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2000).
Counsel first considers arguing that Castro-Rodriguez’s guilty plea was
involuntary and should be set aside because the district court failed to give every
admonishment listed in Federal Rule of Criminal Procedure 11. Counsel is correct
to evaluate this question because Castro-Rodriguez has decided he wants his guilty
plea vacated. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But, as
counsel recognizes, we review only for plain error because Castro-Rodriguez did not
seek to withdraw his guilty plea in the district court. See United States v. Vonn,
535 U.S. 55, 63 (2002).
First, counsel notes that the court did not inform Castro-Rodriguez that he
had the right to plead not guilty. See Fed. R. Crim. P. 11(b)(1)(B). But given that
the purpose of the colloquy was to change his earlier plea of not guilty, he was
aware of this right. See Knox, 287 F.3d at 670. Second, although the district court
failed to admonish Castro-Rodriguez of his right to be represented by counsel, see
Fed. R. Crim. P. 11(b)(1)(D), this omission was harmless because he was
represented by counsel at the time of the colloquy. See United States v. Lovett, 844
F.2d 487, 491 (7th Cir. 1988). Third, although the district court did not inform
Castro-Rodriguez of his right to confront witness, his right not to testify, and his
right to compulsory process, see Fed. R. Crim. P. 11(b)(1)(E), counsel points out that
he was properly informed of these rights in the written plea agreement. See United
States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001) (explaining that a Rule 11
omission was harmless where the information was already conveyed to the
defendant by his counsel or in his plea agreement).
No. 05-1269 Page 3
Finally, counsel points out that the district court did not inform Castro-
Rodriguez of the consequences of violating the conditions of his supervised release.
But this error was also harmless because the district court did inform him of the
maximum possible penalty, and his combined terms of imprisonment and
supervised release (82 months) did not exceed the maximum possible sentence
under the statute (240 months). See United States v. Maeder, 326 F.3d 892, 893
(7th Cir. 2003). Counsel is thus correct that any Rule 11 argument would be
frivolous against a plain-error review because the district court substantially
complied with its requirements. See Schuh, 289 F.3d at 975.
Counsel also considers arguing that the district court misapplied the
guidelines or otherwise sentenced Castro-Rodriguez unreasonably. But these
arguments are frivolous because his enforceable waiver precludes appellate review
on these grounds as they do not present constitutional claims or otherwise come
within the waiver’s exceptions.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.