NONPRECEDENTIAL DISPOSITION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 May 7, 2014
Decided May 7, 2014
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13‐2534
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 CR 639‐1
GERARDO HERNANDEZ,
Defendant‐Appellant. Charles R. Norgle,
Judge.
O R D E R
Gerardo Hernandez obtained heroin from Mexico and supplied it to a distributer
in Chicago. He was charged with conspiring to possess heroin with intent to distribute,
21 U.S.C. §§ 846, 841(a)(1), distributing heroin, id. § 841(a)(1), and using a telephone to
facilitate a felony drug crime, id. § 843(b). He pleaded guilty to the conspiracy count,
and the government—without any agreement, according to the parties—dropped the
remaining charges as well as a forfeiture count. The indictment alleges, and Hernandez
admitted during the plea colloquy, that the conspiracy had involved at least 1 kilogram
of a mixture containing heroin. That quantity was enough to mandate a sentence of no
less than 10 years, see id. § 841(b)(1)(A)(i), which is what the district court imposed.
No. 13‐2534 Page 2
Hernandez filed a notice of appeal, but his lawyer asserts that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We
invited Hernandez to comment on counsel’s motion, see CIR. R. 51(b), but he has not
responded. Counsel has submitted a brief that explains the nature of the case and
addresses the issues that an appeal of this kind might be expected to involve. Because
the analysis in the brief appears to be thorough, we limit our review to the subjects that
counsel has discussed. See United States v. Bey, ‐‐‐ F.3d ‐‐‐, 2014 WL 1389090, at *2 (7th
Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In compliance with our directive in United States v. Konczak, 683 F.3d 348, 349 (7th
Cir. 2012), and United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), counsel has asked
Hernandez if he wants to challenge his guilty plea. Counsel notes that Hernandez
“declined” to answer this inquiry, so the lawyer proceeds to discuss the adequacy of the
plea colloquy. Given Hernandez’s silence, this was the prudent course. At all events, we
agree with Hernandez’s lawyer—despite counsel’s failure to notice several
shortcomings in the plea colloquy—that any appellate claim challenging the plea would
be frivolous.
The district court neglected to tell Hernandez that his statements made under
oath during the plea colloquy could be used against him in a prosecution for perjury.
See FED. R. CRIM. P. 11(b)(1)(A). The court also neglected to ensure that Hernandez
understood the conspiracy charge, warn him about possibly having to pay restitution,
or tell him that the sentencing guidelines must be applied and considered along with
other applicable factors. See FED. R. CRIM. P. 11(b)(1)(G), (K), (M). But Hernandez never
moved to withdraw his guilty plea on the basis of these omissions or any other ground,
and thus our review would be limited to plain error. See United States v. Vonn, 535 U.S.
55, 62–63 (2002); United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The judge’s
failure to caution Hernandez about the consequences of perjury could not have been
plain error because no perjury prosecution is pending or contemplated. See United States
v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003); United States v. Graves, 98 F.3d 258, 259 (7th
Cir. 1996). And though the judge did not explain the conspiracy charge, neither could
this omission have been plain error because giving the defendant a copy of the
indictment typically raises “the presumption that the defendant was informed of the
nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618 (1998).
Furthermore, not mentioning restitution was inconsequential because the judge did not
impose a fine, and thus, as is evident in hindsight, restitution was not authorized for
this drug prosecution. See 18 U.S.C. § 3663(a)(1)(A) (authorizing “community
restitution” in drug prosecutions if there is no identifiable victim); United States v.
No. 13‐2534 Page 3
Mansoori, 304 F.3d 635, 677 (7th Cir. 2002) (explaining that community restitution cannot
be imposed unless defendant also is fined). Finally, the court’s failure to discuss the role
of the guidelines and other factors in 18 U.S.C. § 3553(a) likewise was immaterial
because Hernandez received the statutory minimum terms of incarceration and
supervised release. See 21 U.S.C. § 841(b)(1)(A)(i).
Counsel also considers whether Hernandez could challenge the district court’s
conclusion that he was ineligible for the “safety valve,” which allows a sentence below
the statutory minimum for certain nonviolent drug offenses. See 18 U.S.C. § 3553(f). To
qualify for the safety valve, a defendant must (among other things) make a “good faith
effort” to provide the government all relevant information. See United States v. Corson,
579 F.3d 804, 814 (7th Cir. 2009). Hernandez twice proffered information to the
government, but both meetings were cut short when the government concluded that
Hernandez was lying about his role in the conspiracy. At the sentencing hearing,
Hernandez’s lawyer conceded that the requirements of the safety valve, see 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2(a), had not been satisfied. Moreover, by lying during his two
meetings with the government, Hernandez already had forfeited his eligibility for this
relief from the statutory minimum. See United States v. Acevedo‐Fitz, 739 F.3d 967, 970–71
(7th Cir. 2014). Thus, we agree with counsel that any appellate claim about the length of
Hernandez’s sentence would be frivolous.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.