United States v. Carrera, Rudy L. , 250 F. App'x 731 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 October 10, 2007
Decided October 11, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-4297
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 05-CR-560-2
RUDY L. CARRERA,
Defendant-Appellant. Ronald A. Guzman,
Judge.
ORDER
Rudy Carrera pleaded guilty to conspiracy to possess cocaine with intent to
distribute, see 21 U.S.C. §§ 846, 841(a)(1), and attempt to possess cocaine with
intent to distribute, see id. The district court sentenced him at the high end of the
guidelines range to a total of 135 months’ imprisonment. Carrera appeals, but his
appointed counsel has moved to withdraw because he cannot discern a nonfrivolous
basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We invited Carrera
to respond to counsel's motion, see Cir. R. 51(b), and he has done so. Our review is
limited to the potential issues identified in counsel's facially adequate brief and in
Carrera's response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
No. 06-4297 Page 2
Carrera was indicted in August 2005. At status hearings that followed in
September, November, and December, the district judge granted the government’s
unopposed motions for a continuance and each time excluded the resulting delay
under the Speedy Trial Act on the ground that refusing to grant the requested
continuance would likely make it impossible to proceed or result in a miscarriage of
justice. See 18 U.S.C. § 1361(h)(8)(A), (B)(i). At the December hearing the district
judge also set a trial date for June 2006. Carrera entered his guilty pleas one week
before the scheduled date. He was at all times detained: he originally waived his
detention hearing, and a magistrate judge denied his later request for pretrial
release.
In his Anders brief, counsel first considers whether Carrera might challenge
the voluntariness of his guilty pleas. Counsel contemplates arguing that Carrera
did not “understand” the rights he was waiving, see Fed. R. Crim. P. 11(b)(1),
because Carrera speaks only Spanish. But counsel does not say that Carrera wants
his pleas set aside, and Carrera’s response is ambiguous on the issue. See United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002); United States v. Torres, 482 F.3d
925, 925 (7th Cir. 2007). In any event, Carrera did not move to withdraw his guilty
pleas in the district court, so we would review only for plain error. Schuh, 289 F.3d
at 974. And we discern no error, plain or otherwise: an interpreter was provided;
Carrera stated that he understood the interpreter at the outset; and his responses
to the judge throughout the proceeding reflected understanding. The substance of
the plea colloquy also substantially complied with Rule 11, see United States v.
Blalock, 321 F.3d 686, 688 (7th Cir. 2003), so this argument would be frivolous.
Counsel next considers arguing that Carrera’s pretrial detention was illegal,
but we agree with counsel that it would be frivolous to do so. Any issue regarding
the legality of Carrera’s pretrial detention became moot once he pleaded guilty. See
Murphy v. Hunt, 455 U.S. 478, 481-82, (1982); United States v. O'Shaughnessy, 772
F.2d 112, 113 (5th Cir. 1985).
Counsel next considers arguing that Carrera’s convictions for both conspiracy
to possess cocaine and attempted possession violated the Double Jeopardy Clause.
Carrera, however, waived any double-jeopardy claim by pleading guilty. See United
States v. Broce, 488 U.S. 563, 568-71 (1989); United States v. Nave, 302 F.3d 719,
721 (7th Cir. 2002). In any event, it has long been settled that a prosecution for
both conspiracy and attempt does not violate the Double Jeopardy Clause because
each crime requires proof of a fact that the other does not. See Blockburger v.
United States, 284 U.S. 299, 304 (1932); United States v. Rein, 848 F.2d 777, 780
(7th Cir. 1988). Conspiracy requires proof of an agreement, and attempt requires
proof of a substantial step towards completion. See Rein, 848 F.2d at 780. This
argument would therefore be frivolous.
No. 06-4297 Page 3
Counsel and Carrera next consider arguing that he was denied his statutory
right under the Speedy Trial Act to a trial within 70 non-excludable days of his
indictment, see 18 U.S.C. § 3161(c), and his constitutional right under the Sixth
Amendment to a speedy trial. Counsel concludes, and we agree, that an argument
premised on the Speedy Trial Act would be frivolous because Carrera never moved
to dismiss the indictment on this ground. The statute itself provides that a
defendant's failure to move for dismissal before trial or the entry of a guilty plea
waives the right to enforce the 70-day rule. 18 U.S.C. § 3162(a)(2); see United
States v. White, 443 F.3d 582, 589 (7th Cir. 2006). Even plain-error review is
unavailable. See United States v. Morgan, 384 F.3d 439, 442-43 (7th Cir. 2004).
Nor can Carrera make out a violation of his speedy-trial right under the Sixth
Amendment because his guilty pleas waived any such claim. See United States v.
Gaertner, 583 F.2d 308, 311 (7th Cir. 1978); Washington v. Sobina, 475 F.3d 162,
165-66 (3d Cir. 2007); United States v. Coffin, 76 F.3d 494, 496 (2d Cir. 1996);
Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Cox v. Lockhart, 970 F.2d 448,
453 (8th Cir. 1992).
Counsel next considers whether Carrera could challenge the reasonableness
of his overall prison term, but properly concludes that such a challenge would be
frivolous. Carrera’s sentence is within the guidelines range and would be presumed
reasonable. See United States v. Rita, No. 06-5754, 2007 WL 1772146, at *6 (U.S.
Jun. 21, 2007); United States v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir.
2006). Counsel notes that the district court failed to explicitly address Carrera’s
contention that he should be sentenced at the middle of the guidelines range
because he will likely be deported. But sentencing judges can, and should, forgo
discussion of meritless arguments for the sake of judicial economy. See United
States v. Acosta, 474 F.3d 999, 1003 (7th Cir. 2007). And Carrera’s argument was
meritless. Cf. United States v. Meza-Urtado, 351 F.3d 301, 305 (7th Cir. 2003)
(explaining pre-Booker that downward departure is not available because defendant
is deportable); see also United States v. Orozco-Vasquez, 469 F.3d 1101, 1109 (7th
Cir. 2006) (approving of increasing sentence based on, among other things,
defendant's illegal reentry). It is true that the district court’s discussion of the
factors in 18 U.S.C. § 3553(a) was otherwise brief, but Carrera’s removability was
the only factor that counsel raised below. And he is unable to articulate any other
reason that the presumption of reasonableness would be overcome on appeal.
Counsel lastly considers arguing that the district court violated Carrera’s
right to due process because the court considered unreliable information in choosing
a sentence at the high end of the guidelines range. At sentencing the government
argued that the events leading to Carrera’s arrest suggested that he was a seasoned
drug trafficker. But to mount a due-process challenge, Carrera would have to
demonstrate that the government’s belief was inaccurate and that the court relied
on it. See United States v. Barker, 467 F.3d 625, 630 (7th Cir. 2006). Even if
No. 06-4297 Page 4
Carrera could demonstrate that the government’s position was inaccurate, he could
not establish that the court chose a sentence at the high end of the range because of
it. The court did not mention the government’s theory when pronouncing sentence,
and the government offered several other reasons, such as the large amount of
cocaine (27 kilograms) that Carrera admitted was involved in this conspiracy, in
support of a sentence at the high end of the range. See United States v. Harrison,
431 F.3d 1007, 1012-13 (7th Cir. 2005) (concluding that it was not clear error for
district court to find that defendant had previously sold drugs based on large
quantity he possessed). In addition, the government premised an argument that
Carrera managed the conspiracy, see U.S.S.G. § 3B1.1(b), on the same theory, but
the court rejected it. Therefore this argument would be frivolous.
Carrera raises one final potential argument. We understand him to
challenge the constitutionality of 21 U.S.C. § 841(b) on the ground that it is
inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000). We have repeatedly
rejected this argument. See United States v. Sowemino, 335 F.3d 567, 570 (7th Cir.
2003); United States v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001); accord United
States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc); United States v. Outen,
286 F.3d 622, 634 (2d Cir. 2002); United States v. Palmer, 297 F.3d 760, 767 (8th
Cir. 2002). Apprendi affects only how § 841(b) is implemented: the maximum
penalty must be established in a constitutional manner, and then the judge may
select a sentence using the preponderance standard. See Brough, 243 F.3d at 1079-
80. That is precisely what occurred here because Carrera’s sentence is below the
default statutory maximum of 20 years for a conviction involving any amount of
cocaine. See 21 U.S.C. § 841(b)(1)(C).
Accordingly, the motion to withdraw is GRANTED and the appeal is
DISMISSED.