NONPRECEDENTIAL DISPOSITION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 8, 2009
Decided October 9, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐3838
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division.
v. No. 07 CR 651‐1
JOE VAZQUEZ‐OTERO, John W. Darrah,
Defendant‐Appellant. Judge.
O R D E R
Jose J. Vasquez1 was charged with conspiracy to possess and distribute controlled
substances. See 21 U.S.C. §§ 846, 841(a)(1). He entered into a plea agreement that includes a
broad waiver of his right to appeal the conviction or sentence. But after the district court
imposed a 262‐month term of imprisonment, Vasquez filed a notice of appeal despite the
waiver. His appointed attorney is unable to find a nonfrivolous basis for the appeal and has
1
Vasquez has previously used several different names including Joe Vazquez‐Otero,
Joseph J. Vazquez‐Otero, Pedro Lopez, Jose Vazquez, Joe Vazquez, Jose Jaime Vazquez, and
Jose Jaime Vazquez‐Otero.
No. 08‐3838 Page 2
moved to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Vasquez to
comment on the pending motion. He did not respond. That leaves us with only the
potential issues identified in counsel’s facially adequate supporting brief. See United States
v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Because Vasquez has told counsel that he wants his guilty plea set aside, counsel first
addresses whether there is any basis to challenge the plea. See United States v. Knox, 287
F.3d 667, 671‐72 (7th Cir. 2002). In the district court Vasquez did not seek to withdraw his
plea; therefore, we would examine the plea colloquy for plain error. United States v. Vonn,
535 U.S. 55, 59 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir. 2008).
Counsel identifies only one omission during the plea colloquy: Vasquez was not
informed of his right to a lawyer. See FED. R. CRIM. P. 11(b)(1)(D). But when he pleaded
guilty Vasquez was represented by appointed counsel, so he must have known of this right,
and the omission was harmless. See United States v. Lovett, 844 F.2d 487, 491‐92 (7th Cir.
1988). Accordingly, we agree with counsel that a challenge to Vasquez’s guilty plea would
be frivolous.
Counsel next evaluates whether Vasquez could challenge his sentence, but correctly
concludes that any potential argument is precluded by the appeal waiver. If the guilty plea
stands, so does the waiver. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002);
United States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001). Accordingly, we agree with counsel
that a challenge to Vasquez’s sentence would be frivolous.
Counsel is not able to identify any other potential issue for appeal. The motion to
withdraw is GRANTED, and the appeal is DISMISSED.