United States v. Lopez, Martin , 151 F. App'x 479 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-3593
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois
v. No. 3:04CR30054-001-GPM
MARTIN LOPEZ, G. Patrick Murphy,
Defendant-Appellant. Chief Judge.
ORDER
Martin Lopez pleaded guilty to one count of possession of at least 500 grams
of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of
conspiracy to commit that offense, id. § 846. At his plea colloquy, Lopez
acknowledged, under oath, that he had agreed to sell two kilograms of cocaine to a
confidential informant. He also acknowledged that, when the police arrested him,
he and his co-conspirator had approximately two kilograms of cocaine in their
possession. The district court sentenced Lopez to concurrent terms of 60 months’
imprisonment and four years of supervised release, the mandatory minimum. See
21 U.S.C. § 841(b)(1)(B). Lopez’s appointed counsel now moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he is unable to find a
nonfrivolous argument for appeal. Lopez filed a response under Circuit Rule 51(b).
Since counsel’s brief is facially adequate, we will review only the potential issues
identified in counsel’s brief and Lopez’s response. See United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam).
No. 04-3593 Page 2
Lopez had told counsel that he did not want his guilty pleas set aside, and
thus counsel correctly declined to discuss whether they might be challenged as
involuntary. See United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). In
his Rule 51(b) response, however, Lopez describes his pleas as “unlawful.” Lopez
does not elaborate on this statement, so it is unclear whether he has changed his
mind about persisting with his guilty pleas. In any case, after reviewing the
transcript of the plea colloquy, we have determined that the district court
substantially complied with Fed. R. Crim. P. 11. United States v. Schuh, 289 F.3d
968, 975 (7th Cir. 2002). A voluntariness claim would thus be frivolous. See id.
(“[A] careful plea colloquy under Rule 11 ensures that the guilty plea is knowing
and voluntary.”).
Counsel also considered whether Lopez might challenge his concurrent
sentences. But Lopez was sentenced to the statutory minimum terms of
imprisonment and supervised release, and the district court had no discretion to
give a lower sentence unless Lopez qualified for a substantial-assistance or safety-
valve exception. See 18 U.S.C. § 3553(e), (f); United States v. Crickon, 240 F.3d
652, 655 (7th Cir. 2001); see also United States v. Duncan, 413 F.3d 680, 684 (7th
Cir. 2005) (explaining that United States v. Booker, 125 S. Ct. 738 (2005), does not
give sentencing court discretion to disregard statutory minimum). As counsel
correctly points out, Lopez qualified for neither exception. Only the government can
trigger a sentence below a statutory minimum to recognize substantial assistance,
United States v. McMutuary, 217 F.3d 477, 486 (7th Cir. 2000), and it did not do so
in this case. And Lopez waived any claim to eligibility for the safety valve by
admitting at sentencing that he was not eligible for relief under § 3553(f). See
United States v. Harris, 230 F.3d 1054, 1058–59 (7th Cir. 2000). Therefore, any
argument concerning the mandatory terms imposed would be frivolous.
Lopez proposes several other potential issues in his Rule 51(b) response, all
of which clearly would be frivolous. Lopez can no longer argue entrapment because
an unconditional guilty plea waives all non-jurisdictional defects. United States v.
Galbraith, 200 F.3d 1006, 1010 (7th Cir. 2000). And despite Lopez’s belief that
Title 21 applies only to doctors, pharmacists, and other “registered persons,” his
drug prosecution was lawful. Finally, Lopez cannot argue under Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the government was required to prove the drug
quantity to a jury beyond a reasonable doubt. His five-year terms are well below
the 20-year maximum for offenses involving any amount of cocaine, 21 U.S.C.
§ 841(b)(1)(C); Schuh, 289 F.3d at 975, and Apprendi does not apply to mandatory
minimum sentences, see Harris v. United States, 536 U.S. 545, 566 (2002); Duncan
413 F.3d at 683.
For the above reasons, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.