United States v. Hernandez, Homero H. , 263 F. App'x 534 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 February 13, 2008
Decided February 14, 2008
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-2564
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 06-CR-328
HOMERO H. HERNANDEZ,
Defendant-Appellant. William C. Griesbach,
Judge.
ORDER
Law enforcement officers, acting on an informant’s tip, detained Homero
Hernandez and Felipe Lara-Diaz as the two men departed in separate vehicles from
a stash house they used in their drug business. The officers found three pounds of
marijuana in the backseat of Hernandez’s truck and a small amount of marijuana
in Lara-Diaz’s car. They then searched the stash house, where they found a small
amount of cocaine in the kitchen as well as five pounds of marijuana and four
kilograms of cocaine in a car parked in the garage. Hernandez was charged in
federal court with six counts relating to the drugs and pleaded guilty to conspiracy
to possess and distribute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a)(1).
He conceded that the conspiracy involved at least five kilograms of cocaine, which
triggered a statutory-minimum term of 10 years’ imprisonment, see id.§ 841(b)(1)(A)(ii), and the district court sentenced him to the minimum term.
No. 07-2564 Page 2
As part of his plea agreement, Hernandez waived his right to appeal his
sentence except on limited grounds not relevant here. Hernandez nevertheless filed
a notice of appeal, but his appointed lawyers (Jonathan E. Hawley and Johanna M.
Christiansen of the Federal Public Defender’s Office for the Central District of
Illinois) move to withdraw under Anders v. California, 386 U.S. 738 (1967), because
they cannot discern any nonfrivolous ground for appeal. Hernandez did not accept
our invitation to respond to his lawyers’ submission. See CIR. R. 51(b). Limiting our
review to the potential issues identified in counsel’s facially adequate brief, see
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002), we grant counsel’s
motion and dismiss the appeal.
In their Anders submission, counsel first address whether Hernandez might
argue that his guilty plea was not voluntary and should be set aside. This
discussion is appropriate because Hernandez has told counsel that he wants his
guilty plea vacated. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2001).
But Hernandez did not move to withdraw his guilty plea in the district court, so our
review would be for plain error. See United States v. Blalock, 321 F.3d 686, 688 (7th
Cir. 2003).
An argument that it was plain error for the district court to accept
Hernandez’s plea would be frivolous, though, because during the plea colloquy the
court substantially complied with Federal Rule of Criminal Procedure 11. See id. at
688-89; Schuh, 289 F.3d at 975. In particular, the district court ensured that
Hernandez was pleading guilty of his own volition, that he understood the
conspiracy charge and possible penalties, that there was a factual basis for his plea,
and that he understood the rights he was giving up, including the right to appeal.
See FED. R. CRIM. P. 11(b)(1), (2), (3). Hernandez’s lawyers note minor omissions in
the plea colloquy, but correctly explain that none would rise to the level of plain
error. Hernandez was not harmed when the court failed to inform him that the
government could use any of his statements in a prosecution for perjury or false
statement, see FED. R. CR. P. 11(b)(1)(A), because there is no such current or
prospective prosecution against him. See United States v. Graves, 98 F.3d 258, 259
(7th Cir. 1996). Nor was Hernandez harmed by the court’s failure to tell him he
could plead not guilty, see FED. R. CR. P. 11(b)(1)(B), because he knew he had that
right; he had exercised it before changing his plea to guilty. See Knox, 287 F.3d at
670. And, finally, it was harmless error for the court to fail to inform Hernandez of
his right against self-incrimination, see FED. R. CR. P. 11(b)(1)(E), as that right is
spelled out in the plea agreement. See United States v. Driver, 242 F.3d 767, 771
(7th Cir. 2001).
No. 07-2564 Page 3
Since we have already held that a voluntariness challenge to his plea would
be frivolous, it would be similarly frivolous for Hernandez to challenge the appeal
waiver included in the agreement accepted along with that plea. See Nunez v.
United States, 495 F.3d 544, 545-46 (7th Cir. 2007). Thus, we need not address
counsels’ further arguments that even apart from the waiver, any possible
sentencing issues would be frivolous.
For the foregoing reasons, counsel’s motion to withdraw is GRANTED and
the appeal is DISMISSED.