United States v. Torres, Antonio

NONPRECEDENTIAL DISPOSITION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 April 2, 2007
Decided September 25, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3583
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 06 CR 116
ANTONIO TORRES,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Antonio Torres pleaded guilty to conspiracy to possess and distribute cocaine.
See 21 U.S.C. §§ 846, 841(a)(1). Four substantive distribution counts were
dismissed as part of his plea agreement. The district court sentenced him to 60
months’ imprisonment, which is the mandatory minimum because the conspiracy
involved at least 500 grams of cocaine. See 21 U.S.C. § 841(b)(1)(B). Counsel for
Mr. Torres filed a notice of appeal but now moves to withdraw because he cannot
discern a nonfrivolous issue for appeal. See Anders v. California, 386 U.S. 738No. 06-3583 Page 2
(1967). We invited Mr. Torres to respond to counsel’s motion, see Cir. R. 51(b), but
he has not done so.
In the brief filed in support of his motion to withdraw, counsel identifies as a
potential issue the adequacy of the guilty-plea colloquy conducted by the district
court under Federal Rule of Criminal Procedure 11. We have held, though, that a
lawyer should not discuss in an Anders submission the adequacy of a Rule 11
colloquy unless the defendant wants his guilty plea vacated, see United States v.
Knox, 287 F.3d 667, 670-71 (7th Cir. 2003), and in this case counsel’s brief is silent
concerning the degree to which counsel consulted with Mr. Torres about his desire
to have his plea set aside. We thus ordered counsel to provide us with a statement
affirming that he communicated with Mr. Torres on this point and disclosing
Mr. Torres’s position. See United States v. Torres, 482 F.3d 925 (7th Cir. 2007).
Counsel has tendered that statement and clarified that Mr. Torres does not wish to
have his guilty plea vacated. Accordingly, we do not discuss the plea colloquy or the
voluntariness of Mr. Torres’ guilty plea. See Knox, 287 F.3d at 670-71.
Counsel also considers whether Mr. Torres could argue that his prison
sentence is unreasonable. Counsel is correct, however, that such an argument
would be frivolous because 60 months is the mandatory minimum term of
imprisonment by statute, and the district court was not free to impose a lower term.
See United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006); United States v.
Cannon, 429 F.3d 1158, 1160 (7th Cir. 2005); United States v. Lee, 399 F.3d 864,
866 (7th Cir. 2005). Mr. Torres’ sentence cannot be unreasonably high when the
district court was not empowered to disregard the mandatory minimum.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.