United States v. Vasquez, Ramon E.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 25, 2006
Decided September 25, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2638
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of
Plaintiff-Appellee, Illinois, Eastern Division.
v. No. 02 CR 378
RAMON EDUARDO VASQUEZ, Robert W. Gettleman,
Defendant-Appellant. Judge.
ORDER
Ramon Vasquez and his codefendant were arrested after they retrieved a
brick of cocaine from a storage facility where agents discovered another 50
kilograms of cocaine and eight guns. Vasquez eventually pleaded guilty to
conspiracy to possess with intent to distribute more than five kilograms of powder
cocaine. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii). As part of his plea agreement,
which resulted in the dismissal of three other charges, Vasquez waived his right to
appeal his sentence “on any ground whatever.” The district court calculated a
guidelines imprisonment range of 168 to 210 months and sentenced Vasquez to 170
months’ imprisonment and five years’ supervised release. Vasquez filed a notice of
appeal, but appellate counsel appointed by this court moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he cannot discern any
nonfrivolous arguments to pursue. We invited Vasquez to respond to counsel’s
brief, see Cir. R. 51(b), but he has not done so. Accordingly, we will consider only
those potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 04-2638 Page 2
Counsel informs us that Vasquez wishes to argue that his guilty plea should
be set aside on the ground that trial counsel misled him into believing that his
offense level would not be increased two levels for his possession of the guns in the
storage unit. See U.S.S.G. § 2D1.1(b)(1). Accordingly, it is proper for appellate
counsel to evaluate the voluntariness of the plea. See United States v. Knox, 287
F.3d 667, 670-71 (7th Cir. 2002). Normally, the district judge’s substantial
compliance with Fed. R. Crim. P. 11 establishes that a guilty plea is knowing and
voluntary. See Fed. R. Crim. P. 11(h); United States v. Dominguez-Benitez, 542 U.S.
74, 80 (2004); Schuh, 289 F.3d at 975. But since Vasquez did not move to withdraw
his plea in the district court, our review would be for plain error only. See United
States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003).
In the written plea agreement, Vasquez not only agreed that he possessed
several firearms, but he expressly acknowledged that a two-level firearm
adjustment would apply. At the plea colloquy, Vasquez informed the court that he
had reviewed the plea agreement in full, that he had no questions or concerns about
it, and that the facts pertaining to the guns were correct. Thus, to argue that he did
not understand the sentencing consequences of the firearms, Vasquez would have to
assert that he perjured himself before the district court. Any such argument could
be dismissed out of hand. See United States v. Peterson, 414 F.3d 825, 826-27 (7th
Cir. 2005). Moreover, the district judge ensured the voluntariness of Vasquez’s
guilty plea by taking steps to determine Vasquez’s competence and in all other
respects substantially complying with Rule 11. Accordingly, any argument that the
plea agreement should be set aside would be frivolous. To the extent Vasquez
wishes to argue that his trial counsel was ineffective for purportedly misleading
him about the impact of the firearms on his sentence, such a claim would best be
left for a collateral proceeding where the record could be further developed. See
United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003); Knox, 287 F.3d at 671.
Finally, counsel considers whether there is any basis on which Vasquez could
attack his sentence. But in the written plea agreement Vasquez expressly waived
his right to appeal any sentence imposed. Because the appeal waiver stands or falls
with the guilty plea itself, counsel properly concludes that any argument not
reserved in the appeal waiver would be frivolous. See United States v. Inglese, 282
F.3d 528, 540 (7th Cir. 2002); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.
2002).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.