United States v. Marquez, Honorio , 139 F. App'x 733 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2005
Decided July 15, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-3997
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 04 CR 114
HONORIO MARQUEZ,
Defendant-Appellant. Sarah Evans Barker,
Judge.
ORDER
Honorio Marquez pleaded guilty to conspiracy to possess cocaine with intent
to distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 78 months in prison
and five years’ supervised release. Marquez filed a timely notice of appeal, but his
appointed lawyer now moves to withdraw because he cannot discern a nonfrivolous
basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). Marquez was
notified that he could respond to counsel’s motion, see Cir. R. 51(b), but he did not.
Because counsel’s supporting brief is facially adequate, we review only the potential
issues it identifies. See United States v. Johnson, 248 F.3d 655, 667-68 (7th Cir.
2001).
No. 04-3997 Page 2
Before his change-of-plea hearing, Marquez petitioned the district court to
enter a guilty plea. In his written petition, Marquez acknowledged his rights to
plead not guilty, to confront and cross-examine adverse witnesses, to have the
assistance of counsel, to remain silent, and to testify or not at trial. Marquez also
executed a written plea agreement in which he waived his right to appeal his
conviction or sentence so long as the district court sentenced him at a total offense
level 27 or lower. During his plea colloquy, Marquez admitted to taking delivery of
eight kilograms of cocaine from a courier in Indianapolis, Indiana. At sentencing
the court determined Marquez’s total offense level to be 27 after reducing the base
offense level by three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1,
and two more levels because of the safety valve, id. §§ 2D1.1(b)(7), 5C1.2, and
calculated his criminal history category as I. He was sentenced in the middle of the
guideline range of 70 to 87 months.
Marquez has informed counsel that he wants to take back his guilty plea and
go to trial. Counsel considers whether Marquez could pursue a nonfrivolous
challenge to the plea on the ground that the district court did not comply with Fed.
R. Crim. P. 11. Substantial compliance is all that Rule 11 requires, see United
States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002), though Marquez would need to
demonstrate plain error arising from any shortcoming in the plea colloquy because
he never sought to withdraw his guilty plea in the district court, United States v.
Vonn, 535 U.S. 55, 59 (2002).
Counsel concludes that any Rule 11 argument would be frivolous because the
district court substantially complied with its requirements. We agree. First,
counsel points out that the district court failed to explicitly remind Marquez that he
had the right to plead not guilty. However, that right was covered in the petition to
enter a guilty plea and was necessarily known to Marquez because the purpose of
the colloquy was to change his plea from not guilty; thus, any error in not
reminding him was harmless. See United States v. Knox, 287 F.3d 667, 670 (7th
Cir. 2002). Second, the district court did not inform Marquez that he was forfeiting
the right to confront adverse witnesses. But again, Marquez was aware of this
right because it is acknowledged in his petition, and, moreover, the district court
generally explained what would occur at trial, including the opportunity to question
government witnesses. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.
2001). Third, the district court failed to inform Marquez that any false statements
could subject him to perjury charges, but because he is not facing any current or
prospective perjury charge, this too was harmless. United States v. Graves, 98 F.3d
258, 259 (7th Cir. 1996). Fourth, the district court did not explicitly inform
Marquez of his right to an attorney, but Marquez could not possibly have been
harmed by the omission because appointed counsel was with him during the
No. 04-3997 Page 3
colloquy. See Fed. R. Crim. P. 11(b)(1)(D); see also United States v. Lovett, 844
F.2d 487, 491 (7th Cir. 1988).
The only other potential issue identified by counsel is whether Marquez can
challenge his sentence given his explicit waiver of the right to do so. Marquez
conditioned his waiver on being sentenced at or below a total offense level of 27,
and because he was sentenced within this limit the waiver is effective. Waivers are
analyzed as contracts with the government, and nothing in Marquez’s plea
agreement provides an “escape hatch” enabling him to appeal if the law changed to
his benefit. United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED, and Marquez’s appeal is
DISMISSED.