NONPRECEDENTIAL DISPOSITION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 March 31, 2009
Decided April 1, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1998
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐CR‐52
ANTONIO ARROYO, Lynn Adelman,
Defendant‐Appellant. Judge.
O R D E R
Antonio Arroyo pleaded guilty to attempting to distribute cocaine, 21 U.S.C. §§ 846,
841(a)(1), and received the statutory minimum sentence of 120 months’ imprisonment.
Arroyo appeals, but his appointed counsel has moved to withdraw because he cannot
identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738 (1967).
Arroyo opposes dismissal of his appeal. See CIR. R. 51(b). We confine our review to the
potential issues outlined in counsel’s supporting brief and in Arroyo’s response. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
We begin by considering whether Arroyo wishes to challenge his guilty plea.
Counsel’s submission suggests that Arroyo seeks to contest his plea, but Arroyo’s own Rule
51(b) response definitively states otherwise. Having consulted both counsel’s and Arroyo’s
No. 08‐1988 Page 2
submissions, we conclude that Arroyo does not wish to challenge his guilty plea.
Accordingly, we need not evaluate the adequacy of the plea colloquy. See United States v.
Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002).
In his Rule 51(b) response, however, Arroyo contends that the district court violated
Federal Rule of Criminal Procedure 11(c)(1) by participating in the plea negotiations. Rule
11(c)(1) categorically prohibits the court from participating in plea discussions between the
government and the defendantʹs attorney. United States v. Linder, 530 F.3d 556, 562 (7th Cir.
2008); United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998). But Arroyo’s purpose in
raising this contention eludes us; in his written submission Arroyo tells us that he does not
want his guilty plea set aside, so he gains nothing by arguing about Rule 11(c)(1). See United
States v. O’Neill, 437 F.3d 654, 664 (7th Cir. 2006). A more favorable sentence is not, as
Arroyo apparently believes, the remedy for a violation of Rule 11. See Kraus, 137 F.3d at 458.
In any event, Arroyo is simply mistaken when he asserts that the district court
participated in the negotiations. According to Arroyo, statements made by the district court
at a hearing on his lawyer’s motion to withdraw demonstrate that the district court
participated in discussions leading to his plea agreement. At that hearing defense counsel
informed the court that Arroyo was refusing to sign the plea agreement she had negotiated
with the government and no longer wanted her to represent him. Arroyo disagreed with the
factual basis for the plea and not with the terms of the plea agreement. There is no reason to
believe that the court violated Rule 11(c)(1) at the motion to withdraw hearing, see United
States v. Reasor, 418 F.3d 466, 479 (5th Cir. 2005), and anyhow, Arroyo later pleaded guilty
without a plea agreement.
Both defense counsel and Arroyo also evaluate whether Arroyo could argue that his
prison sentence is unreasonable. In the presentence investigation report, the probation
officer calculated a total offense level of 25 and a criminal history category of II, which
yielded a guidelines imprisonment range of 63 to 78 months. But the quantity of cocaine,
two kilograms, and Arroyo’s prior conviction for possession of marijuana triggered a
minimum term of 120 months, 21 U.S.C. § 841(b)(1)(B)(ii), and that is the sentence the court
imposed. Defense counsel perceives no worthwhile objection, but Arroyo contends that a
mandatory sentence violates the Due Process Clause. The Supreme Court and this court,
however, have consistently held that mandatory‐minimum sentences are constitutional. See
Chapman v. United States, 500 U.S. 453, 467‐68 (1991); United States v. Franklin, 547 F.3d 726,
735 (7th Cir. 2008).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.