United States v. Hernandez, Vincente

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2006
Decided May 26, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3227
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03-CR-933-1
VINCENTE HERNANDEZ,
Defendant-Appellant. Elaine E. Bucklo,
Judge.
ORDER
Acting on a tip that Vincente Hernandez was involved in heroin smuggling,
police conducted surveillance on his house and eventually arrested him. Hernandez
pleaded guilty to one count of conspiracy to possess with intent to distribute more
than one kilogram of heroin, see 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to
188 months’ imprisonment. The plea agreement includes a waiver of Hernandez’s
right to appeal his sentence with limited exceptions. Hernandez’s counsel now
seeks to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), because
he cannot discern a nonfrivolous basis for appeal. Hernandez has not responded to
our notice under Circuit Rule 51(b). We therefore limit our review to the potential
issues raised by counsel. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.
1997) (per curiam).
No. 05-3227 Page 2
Counsel first considers whether Hernandez could challenge his guilty plea on
grounds that the plea colloquy did not comply with Federal Rule of Criminal
Procedure 11. Counsel points out that the district court violated Rule 11 by
omitting three warnings from the colloquy—that the court must consider the
Guidelines but may depart from them, that the appeal waiver precluded Hernandez
from directly appealing or collaterally attacking his sentence except under certain
circumstances, and that the court could order forfeiture. See Fed. R. Crim. P.
11(b)(1)(M), (N), (J). Counsel explains that he is addressing this issue because
Hernandez is “unsure” whether he wants to set aside his guilty plea. But counsel
should not raise a challenge to a Rule 11 colloquy on appeal, or even consider the
question in an Anders brief, unless the defendant “really wants to withdraw the
guilty plea.” United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Because
Hernandez has not indicated that he wants to withdraw his plea, any consideration
of the issue would be inappropriate. See id. In any event, the information omitted
by the district court in its Rule 11 colloquy—regarding the Guidelines, appeal
waiver, and forfeiture—would be harmless error because each of those warnings
was outlined in Hernandez’s written plea agreement. See United States v. Driver,
242 F.3d 767, 769 (7th Cir. 2001).
Counsel next considers challenging Hernandez’s sentence but deems any
such argument precluded by the broad appeal waiver included in his plea
agreement. That agreement provides that Hernandez “knowingly waives the right
to appeal any sentence within the maximum provided by the statute of conviction”
with certain exceptions not present here. Because the appeal waiver stands or falls
with the plea agreement, counsel properly concludes that any arguments not
reserved in the appeal waiver would be frivolous. See, e.g., United States v.
Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). Hernandez’s sentence here was
lawfully imposed because it is below the statutory maximum for his offense and not
based on a constitutionally impermissible factor. See United States v. Rhodes, 330
F.3d 949, 952 (7th Cir. 2003); Jones v. United States, 167 F.3d 1142, 1444 (7th Cir.
1998).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.