NONPRECEDENTIAL DISPOSITION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 2, 2008
Decided October 3, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐3064
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 CR 1072‐6
JAVIER ROJO,
Defendant‐Appellant. Joan B. Gottschall,
Judge.
O R D E R
Javier Rojo pleaded guilty to possession with intent to distribute cocaine. See 21
U.S.C. § 841(a)(1). As part of a written plea agreement, Rojo waived the right to appeal his
sentence, but retained the right to contest the validity of his guilty plea. The district court
went below the guidelines range and sentenced Rojo to the statutory minimum: 10 years’
imprisonment and 5 years’ supervised release.
Rojo filed a notice of appeal, but appointed counsel has moved to withdraw because
he cannot identify a nonfrivolous issue for appeal. See Anders v. California, 386 U.S. 738
(1967). Rojo opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified by Rojo and those identified in counsel’s brief. See United States v.
Magers, 535 F.3d 608, 609 (7th Cir. 2008).
No. 07‐3064 Page 2
Both Rojo and counsel consider challenging the guilty plea. Rojo asserts that his wife
wrote to the district court before sentencing expressing concern that he did not understand
the plea agreement. A letter from a counseled defendant’s relative could not constitute a
motion to withdraw a guilty plea, see United States v. Traeger, 289 F.3d 461, 471 (7th Cir.
2002); United States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), but even if it could, the record
does not show that the court received the letter. Thus, Rojo never challenged his guilty plea
or the plea colloquy in the district court, and so we would evaluate any issue concerning the
guilty plea for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
In assessing the plea colloquy, Rojo’s lawyer perceives three omissions in the
admonishments given by the district court. We agree with counsel, however, that none
would rise to the level of plain error. First, there was no error when the judge failed to
mention that statements Rojo made under oath could be used against him in a perjury
prosecution, see FED. R. CRIM. P. 11(b)(1)(A), because he is not facing any actual or
threatened perjury prosecution, see United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).
Second, Rojo could not have been misled when the judge said he could cross‐
examine witnesses at trial but did not also say that Rojo could “confront” them. See FED. R.
CRIM. P. 11(b)(1)(E). Cross‐examination is the “main and essential” purpose of
confrontation, Lowery v. Anderson, 225 F.3d 833, 839 (7th Cir. 2000), and nothing suggests
that any of the narrow exceptions to face‐to‐face confrontation would have applied to Rojo’s
case, see Maryland v. Craig, 497 U.S. 836, 850 (1990); United States v. Hamilton, 107 F.3d 499,
503‐04 (7th Cir. 1997). Furthermore, the written plea agreement informed Rojo that he
would have the right to confront adverse witnesses. See United States v. Driver, 242 F.3d 767,
769, 771 (7th Cir. 2001).
Third, the judge did not explain the nature of the drug charge, see FED. R. CRIM. P.
11(b)(1)(G), but we do not require literal compliance with Rule 11 and would look to the
totality of the circumstances to determine whether Rojo actually understood the nature of
the charges, United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994). Rojo was
represented by counsel and pleaded guilty to possession with intent to distribute cocaine, a
straightforward charge. The government’s factual basis was equally straightforward: Rojo
obtained and sold cocaine. Rojo agreed with this factual basis but disagreed with the
government’s contention that he held a managerial role in the offense. All of these factors
suggest that Rojo fully appreciated the charge. See United States v. Fernandez, 205 F.3d 1020,
1025 (7th Cir. 2000). And in fact, Rojo acknowledged in his plea agreement that his attorney
had explained the charge and that he understood its “nature and elements.” Rojo tries to
distance himself from this admission by saying here that he did not understand the plea
agreement he signed, but he told the district court that he had enough time to discuss the
No. 07‐3064 Page 3
case with his lawyer, and that statement is presumed to be truthful. See United States v.
Schuh, 289 F.3d 968, 975 (7th Cir. 2002).
Rojo also objects to the little attention the district court paid to the appeal waiver
during the plea colloquy. He contends that the court should have explained the waiver in
more detail. See FED. R. CRIM. P. 11(b)(1)(N). Although the judge did not elaborate on the
appeal waiver, the plea agreement spells out the terms of the waiver. Furthermore, both the
judge and the government mentioned the waiver during the Rule 11 colloquy, and Rojo
never objected or asked for clarification. Cf. United States v. Sura, 511 F.3d 654, 662 (7th Cir.
2007) (“The problem is that no one said anything about the waiver of appellate rights. It is
this utter silence that causes the problems here.”). Thus we are left with Rojo’s initial sworn
statement that he spent sufficient time reviewing his case with his attorney.
We agree with counsel, then, that a challenge to Rojo’s guilty plea would be
frivolous, and for that reason any claim about Rojo’s sentence would be equally frivolous.
The appeal waiver stands or falls with the guilty plea, see, e.g., United States v. Linder, 530
F.3d 556, 561 (7th Cir. 2008); United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003), and
here the waiver would preclude Rojo from challenging his terms of imprisonment or
supervised release so long as they fall within the statutory limits, which they do. See 21
U.S.C. § 841(b)(1)(A).
Accordingly we grant counsel’s motion to withdraw and dismiss the appeal.