NONPRECEDENTIAL DISPOSITION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 27, 2014
Decided October 27, 2014
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐2453
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 3:12CR00154‐001
PEDRO F. CRUZ, William M. Conley,
Defendant‐Appellant. Chief Judge.
O R D E R
Pedro Cruz was offered $5,300 by a man he knew as “Superman” to travel from
California to Minneapolis, Minnesota, to receive a waiting shipment of
methamphetamine. When Cruz reached Minneapolis, he telephoned his contact—a
DEA informant—and agreed to pick up the drugs in Madison, Wisconsin, rather than
Minneapolis. An undercover officer met Cruz at a shopping mall and delivered
48 pounds of fake methamphetamine. Before Cruz could drive away, he was arrested.
He pleaded guilty to attempting to possess methamphetamine with intent to distribute.
See 21 U.S.C. §§ 846, 841(a)(1). A probation officer calculated a total offense level of
29—after deducting 3 levels for accepting responsibility, see U.S.S.G. § 3E1.1, and 2 more
levels for Cruz’s minor role in the offense, see id. § 3B1.2(b)—and a criminal history
No. 13‐2453 Page 2
category of I, initially yielding a guidelines imprisonment range of 87 to 108 months.
But the amount of methamphetamine that Cruz had tried to acquire subjected him to a
statutory minimum of 10 years, which became the guidelines sentence. See 21 U.S.C.
§ 841(b)(1)(A)(viii); U.S.S.G. § 5G1.1(b); United States v. Padilla, 520 F.3d 766, 773 (7th Cir.
2008).
Cruz did not object to the presentence investigation report, but at sentencing he
argued that he had cooperated fully with investigators and thus qualified for the safety
valve. See 18 U.S.C. § 3553(f); U.S.S.G. § 2D1.1(b)(16). Cruz had denied involvement in
prior drug deliveries and said that Superman had contacted him “out of the blue.” He
also said that his family would be at risk if he revealed more information. The
government insisted that no one would entrust $800,000 worth of methamphetamine to
a first‐time delivery driver and thus Cruz must be lying. The district court agreed with
the government’s reasoning and also noted that Cruz essentially had admitted that he
was withholding information. The court thus found that Cruz failed to qualify for the
safety valve and imposed the 10‐year statutory minimum.
Cruz filed a notice of appeal, but his appointed counsel asserts that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Cruz has
not accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). 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 focus on the subjects the lawyer discusses. See United States
v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th
Cir. 1996).
That said, counsel does not tell us whether he consulted Cruz about the
possibility of challenging his guilty plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). But this
oversight does not require that we deny the Anders motion, since our review of the
record convinces us that a challenge to the adequacy of the plea colloquy—which we
would review for plain error—would be frivolous. See Konczak, 683 F.3d at 349. With
only minor exceptions the district court complied with the requirements of Federal Rule
of Criminal Procedure 11. The court neglected to tell Cruz that he could be prosecuted
for perjury if he made a false statement under oath, see FED. R. CRIM. P. 11(b)(1)(A), but
this omission was harmless because no perjury charge is pending or contemplated,
see United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). The court also neglected to
mention the possibility of ordering forfeiture or restitution, see FED. R. CRIM. P.
No. 13‐2453 Page 3
11(b)(1)(J), (K), but again the omission was harmless because the court did not impose
these financial penalties. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002);
United States v. Fox, 941 F.2d 480, 484–85 (7th Cir. 1991). Overall the court substantially
complied with Rule 11, which is enough to shield a guilty plea from challenge on direct
appeal. See United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003); United States v.
Akinsola, 105 F.3d 331, 334 (7th Cir. 1997).
In his Anders submission counsel first considers whether Cruz could argue that
the district court erred by finding him ineligible for the safety valve. See 18 U.S.C.
§ 3553(f)(5); U.S.S.G. § 2D1.1(b)(16). To qualify, a defendant must (among other things)
make a good‐faith effort to provide the government “all information and evidence”
about the offense. See 18 U.S.C. § 3553(f)(5); United States v. Corson, 579 F.3d 804, 814 (7th
Cir. 2009); United States v. Montes, 381 F.3d 631, 635–37 (7th Cir. 2004). Before sentencing
Cruz vaguely described the man who hired him only as “Superman,” and at sentencing
he explained that he “can’t say anything because they’ll do something” to his family. So
the district court could not have committed clear error in finding that Cruz withheld
information about the identity and participation of others, and any argument to the
contrary would be frivolous. See United States v. Alvarado, 326 F.3d 857, 862 (7th Cir.
2003); United States v. Arrington, 73 F.3d 144, 148 (7th Cir. 1996); United States v.
Thompson, 81 F.3d 877, 879 (9th Cir. 1996); see also United States v. Martinez, 301 F.3d 860,
866 (7th Cir. 2002) (upholding denial of safety valve where defendant refused to give
information for fear of putting family in danger).
Counsel also considers whether Cruz could contest the reasonableness of his
prison sentence. The district court had no authority to impose a sentence below the
statutory minimum, see United States v. Acevedo‐Fitz, 739 F.3d 967, 968 (7th Cir. 2014)
(upholding imposition of statutory minimum where defendant did not qualify for
safety valve); Montes, 381 F.3d at 637 (same); United States v. Marin, 144 F.3d 1085, 1095
(7th Cir. 1998) (remanding with instructions to impose statutory minimum because
defendant did not qualify for safety valve); see also United States v. Roberson, 474 F.3d
432, 436–37 (7th Cir. 2007), so we agree with counsel that any challenge to the
reasonableness of the sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.