United States v. Lluvias, Eduardo , 168 F. App'x 732 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006
Decided February 6, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-3012
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 02 CR 40231
EDUARDO LLUVIAS, Joe B. McDade,
Defendant-Appellant. Judge.
ORDER
Eduardo Lluvias pleaded guilty to one count of conspiracy to distribute five or
more kilograms of cocaine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); three counts of
distribution of cocaine, id. §§ 841(a)(1), (b)(1)(C); and one count of possession of
cocaine with intent to distribute, id. During his plea colloquy, Lluvias stipulated
that at least five kilograms of cocaine were distributed over the life of the
conspiracy. He also acknowledged making three sales of cocaine to an informant
and negotiating a fourth sale that was not consummated only because agents
arrested him with the drugs before the transaction. The conspiracy count carried a
statutory minimum of 10 years’ imprisonment, 21 U.S.C. § 841(b)(1)(A), and the
district court imposed concurrent terms of that length on each count. The court also
imposed five years’ supervised release on the conspiracy count and three years’ on
No. 05-3012 Page 2
each of the remaining counts, all running concurrently. Lluvias appeals,1 but his
appointed appellate counsel seeks to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Lluvias has filed a response. See Circuit Rule 51(b). Because counsel’s brief is
facially adequate, we review only the potential issues identified in counsel’s brief
and Lluvias’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997)
(per curiam).
Counsel informs us that Lluvias does not wish to have his guilty pleas set
aside. Accordingly, in his Anders submission, counsel appropriately avoids any
discussion of the plea colloquy or the voluntariness of those pleas. See United
States v. Knox, 287 F.3d 667, 671-72 (7th Cir. 2002). Lluvias, however, states in his
Rule 51(b) response that his guilty pleas were induced, and thus rendered
involuntary, by former counsel’s misrepresentation that he would be sentenced to
36 months’ imprisonment. Our review would be for plain error because Lluvias did
not make this argument to the district court in a motion to withdraw his guilty
pleas, see United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Gibson,
356 F.3d 761, 765-66 (7th Cir. 2004). In any event, the contention would be
frivolous on this record. During the plea colloquy, the district court informed
Lluvias that he faced no less than 10 years’ imprisonment, and Lluvias, under
oath, acknowledged that he understood. He also acknowledged the court’s
admonishment that any inaccuracy in counsel’s calculation of the guidelines range
would neither bind the court nor supply the basis for withdrawing his guilty pleas.
These sworn statements, unlike what Lluvias now says in his Rule 51(b) response,
are presumed to be truthful. United States v. Schuh, 289 F.3d 968, 975 (7th Cir.
2001); United States v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998).
Counsel and Lluvias also consider whether Lluvias might argue that the
district court overstated his criminal history score by assessing a point for a drunk
driving offense that resulted in a term of court supervision. See U.S.S.G. § 4A1.2(f)
& cmt. nn.5, 9; United States v. Binford, 108 F.3d 723, 726-28 (7th Cir. 1997);
United States v. Redding, 104 F.3d 96, 98-99 (7th Cir. 1996). Counsel and Lluvias
likewise evaluate whether Lluvias should contend that the court ought to have
disregarded the minimum mandatory either because of the “safety valve,” see 18
U.S.C. § 3553(f); U.S.S.G. §§ 5C1.2, 2D1.1(b)(7), or because Lluvias stands to be
deported after his release from prison. In his Rule 51(b) response, Lluvias also
proposes to argue that the minimum mandatory term under § 841(b)(1)(A) is no
longer binding after United States v. Booker, 543 U.S. 220 (2005), and that the court
1
He was sentenced in May 2003 but permitted to proceed with this appeal in
July 2005 after filing a motion under 28 U.S.C. § 2255 alleging that former counsel
had neglected to file a notice of appeal.
No. 05-3012 Page 3
should have imposed a shorter sentence because of “extraordinary” family
circumstances.
All of these potential sentencing issues are frivolous, however. Booker does
not confer discretion to ignore statutory minimum penalties. See United States v.
Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866
(7th Cir. 2005). Counsel correctly notes that a conviction for drunk driving is
counted. See Binford, 108 F.3d at 726-28. Although the “safety valve” is a basis for
sentencing below a statutory minimum, United States v. Crickon, 240 F.3d 652, 655
(7th Cir. 2001), we agree with counsel that it would be frivolous for Lluvias to argue
that he should have benefitted from the safety valve given that his two criminal
history points and his failure to disclose all that he knew about his drug trafficking
was enough to disqualify him. See 18 U.S.C. § 3553(f)(1), (f)(5); Crickon, 240 F.3d at
655; United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000).
Finally, Lluvias proposes two other potential issues in his Rule 51(b)
response. He would argue that his indictment is defective because the conspiracy
charge alleges that he entered an agreement with “other persons known and
unknown” but identifies none of them. This argument would be frivolous.
Coconspirators need not be named in an indictment, United States v. Payton, 328
F.3d 910, 911 (7th Cir. 2003); United States v. Townsend, 924 F.3d 1385, 1389-90
(7th Cir. 1991). Lluvias also would argue that his former attorney was ineffective;
as we have said often, ineffective-assistance claims are best presented by motion
under 28 U.S.C. § 2255 so that the factual predicate can be adequately developed.
See Massaro v. United States, 538 U.S. 500, 504-05 (2003); Schuh, 289 F.3d at 976.
For the above reasons, we grant counsel’s motion to withdraw and dismiss
the appeal.