NONPRECEDENTIAL DISPOSITION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 July 28, 2010
Decided July 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐3853
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 07‐cr‐30022‐001
ARTURO RAMIREZ, JR., Jeanne E. Scott,
Defendant‐Appellant. Judge.
O R D E R
Arturo Ramirez, Jr., pleaded guilty to possession of a controlled substance with the
intent to distribute. See 21 U.S.C. § 841(a)(1). He was sentenced to 300 months’
imprisonment. He appeals, but his appointed counsel seeks to withdraw pursuant to Anders
v. California, 386 U.S. 738 (1967), because he cannot identify any nonfrivolous issues to raise
on his client’s behalf. Ramirez objects to counsel’s motion. See CIR. R. 51(b). Confining our
review to the potential issues identified in counsel’s facially adequate brief and Ramirez’s
objection, see United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002), we grant counsel’s
motion to withdraw and dismiss Ramirez’s appeal.
Ramirez was behind the wheel of a tractor‐trailer truck when a police officer pulled
him over for driving with a broken windshield. Ramirez consented to a search of the trailer.
Inside, the officer uncovered bales of marijuana and a container of cocaine hidden among
No. 09‐3853 Page 2
boxes of avocados. Ramirez admitted that he had been paid to transport the drugs cross‐
country.
After his motion to suppress evidence was denied, Ramirez agreed to plead guilty to
possession of a controlled substance with the intent to distribute. See 21 U.S.C. § 841(a)(1).
He further agreed to waive his right to appeal his conviction and sentence. A magistrate
judge thoroughly reviewed the agreement with Ramirez and explained each of the
considerations enumerated in Federal Rule of Criminal Procedure 11(b)(1). Concluding that
Ramirez’s plea was knowing and voluntary, the magistrate judge recommended accepting
the agreement. The district judge adopted the recommendation.
Five months later Ramirez filed a pro se motion to withdraw his guilty plea. He
argued that the government had not signed the agreement in his presence and that his
lawyer had been ineffective during the suppression hearing. The magistrate judge
recommended denying the motion, reasoning that, because Ramirez was represented by
counsel, the court had no obligation to accept his pro se filing. But even if the motion were
properly before the court, the magistrate judge continued, Ramirez had not established any
fair or just reason to withdraw his plea. In particular the magistrate judge concluded that
Ramirez’s assertion that his lawyer was ineffective not only lacked support in the record but
also contradicted the sworn statements he made during the change‐of‐plea colloquy. Again
the district judge adopted the recommendation.
We are somewhat puzzled by counsel’s representation that “Mr. Ramirez has not
instructed [him] to find some reason to set aside the plea agreement.” (Br. at 13.) If that were
so, then counsel would have no duty to discuss—and we would not review—the adequacy
of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667,
670‐72 (7th Cir. 2002). But in his Rule 51(b) submission Ramirez unambiguously declares “I
do need [counsel] to argue my Motion to withdraw my Guilty Plea.” And indeed elsewhere
in his brief counsel considers arguing that Ramirez’s plea must be set aside, either because it
failed to comply with the requirements of Rule 11 or because Ramirez’s pro se motion to
withdraw the plea should have been granted. Our review of the record, however, confirms
counsel’s assessment that the magistrate judge fully complied with Rule 11 during the
change‐of‐plea colloquy. See Schuh, 289 F.3d at 974. As for Ramirez’s pro se motion to
withdraw his plea, counsel properly notes that his client had no “right” to file a pro se
motion while he was represented by a lawyer. See United States v. Patterson, 576 F.3d 431,
436‐37 (7th Cir. 2009) (internal citation omitted). We would not conclude that the district
court abused its discretion in refusing to allow this “disfavored” form of hybrid
representation. See id. Thus it would be frivolous to argue that Ramirez’s plea agreement
must be set aside. And because his appeal waiver “stands or falls with the rest of the
No. 09‐3853 Page 3
bargain,” see United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002), any additional
appellate arguments—about either the suppression hearing or Ramirez’s sentence—would
be frivolous too.
Ramirez’s Rule 51(b) response does renew his allegations that his lawyer performed
ineffectively during the suppression hearing. But any further pursuit of this claim, whether
by appeal or collateral attack, is also barred by the waiver.
We GRANT counsel’s motion to withdraw and DISMISS Ramirez’s appeal.