NONPRECEDENTIAL DISPOSITION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 22, 2013
Decided May 23, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐2901
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 10‐CR‐00064
RUBEN GAONA, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Ruben Gaona, along with an older brother and other participants, engaged in a
longstanding conspiracy to distribute cocaine and marijuana. Gaona and his associates
obtained these drugs in Texas and transported them to Milwaukee, Wisconsin, for
distribution. Gaona would then direct family members to wire the proceeds from his drug
sales back to associates in Texas. Gaona pleaded guilty to conspiring to possess and
distribute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). The district court
calculated a guidelines imprisonment range of 151 to 168 months, but sentenced Gaona
below that range to the statutory minimum, which was 120 months since the charged
conspiracy involved 5 to 15 kilograms of cocaine. See id. § 841(b)(1)(A)(ii). Gaona filed a
notice of appeal, but his appointed lawyer asserts that the possible appellate claims are
No. 12‐2901 Page 2
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Gaona
has not responded to counselʹs motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counselʹs facially adequate brief. See United States v. Schuh, 289
F.3d 968, 973–74 (7th Cir. 2002).
We note that counsel omits discussion about the change‐of‐plea hearing but does not
say that Gaona, after consultation, elected to forgo any challenge to his guilty plea.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d
667, 671 (7th Cir. 2002). But we are convinced that any challenge to the plea colloquy or the
voluntariness of Gaona’s guilty plea would be frivolous because the transcript of the plea
colloquy demonstrates the district court’s substantial compliance with Federal Rule of
Criminal Procedure 11(b). See Konczak, 683 F.3d at 349. The district court explained the
rights Gaona would relinquish by pleading guilty, advised him of the consequences of his
plea, ensured that it was voluntary, and determined that a factual basis for the plea existed.
See FED. R. CRIM. P. 11(b); United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003).
Counsel does address whether Gaona could challenge his prison sentence. But
Gaona acknowledged in his plea agreement and again during the plea colloquy that the 10‐
year term he received is the statutory minimum. The district court lacked discretion to go
lower because the government had not moved for a reduction under 18 U.S.C. § 3553(e),
and neither was Gaona eligible for the “safety valve,” see id. § 3553(f); U.S.S.G. § 5C1.2(a).
Gaona had conceded that his role in directing family members to wire drug proceeds
justified classifying him, at least, as a manager or supervisor, see U.S.S.G. § 3B1.1(b); United
States v. Cerna, 676 F.3d 605, 608–09 (7th Cir. 2012), making him ineligible for safety‐valve
relief, see 18 U.S.C. § 3553(f)(4); United States v. Martinez, 520 F.3d 749, 751 (7th Cir. 2008).
Thus, any appellate claim about the length of the sentence would be frivolous.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.