NONPRECEDENTIAL DISPOSITION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 February 10, 2010
Decided February 11, 2010
Before
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐2301
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 07‐30182‐01‐WDS
MIGUEL MARISCAL, JR., William D. Stiehl,
Defendant‐Appellant. Judge.
O R D E R
Miguel Mariscal pleaded guilty to conspiracy to distribute cocaine and marijuana,
conspiracy to possess cocaine and marijuana with the intent to distribute, and possession of
cocaine with the intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to
240 months’ imprisonment. Mariscal appeals, but his appointed counsel seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967), because she cannot identify any
nonfrivolous issues to raise on Mariscal’s behalf. We confine our review to the potential
issues identified in counsel’s facially adequate brief and Mariscal’s response under Circuit
Rule 51(b). See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). We grant
counsel’s motion to withdraw and dismiss Mariscal’s appeal.
Mariscal’s plea agreement contained a waiver precluding him from appealing or
challenging his conviction or sentence under any provision of federal law unless he was
No. 09‐2301 Page 2
sentenced to a term of imprisonment above his guidelines range. It also contained an
estimate of Mariscal’s offense level and criminal‐history category under the sentencing
guidelines. But both Mariscal and the government were surprised by the presentence
investigation report, which calculated an offense level and criminal‐history category greater
than either party had anticipated. Mariscal thought his lawyer had misled him and moved
to withdraw the plea. The district court appointed a new lawyer, and after consulting with
him, Mariscal changed his mind and withdrew his motion. The district court adopted the
presentence investigation report’s calculations, granted the government’s motion for a
below‐guidelines sentence in recognition of the substantial assistance Mariscal had
provided, and sentenced Mariscal to 240 months’ imprisonment.
Mariscal advised counsel that he has changed his mind again and now wishes to
withdraw his plea, so counsel properly considers challenging whether the plea was
knowing and voluntary. We agree with counsel that the only possible error the district
court committed during the change‐of‐plea colloquy was neglecting to inform Mariscal of
his right to persist in his plea of not guilty. See FED. R. CRIM. P. 11(b)(1)(B). But the error is
harmless because, having previously moved to withdraw his guilty plea, Mariscal already
knew the information the district court omitted. See United States v. Driver, 242 F.3d 767, 769
(7th Cir. 2001). Mariscal’s plea agreement also advised him of this right.
Counsel next considers challenging Mariscal’s sentence. But as counsel properly
observes, Mariscal’s appeal waiver forecloses any challenge to his sentence except a claim
that it exceeded the statutory maximum, that the district court relied on an unconstitutional
factor, or that the appeal waiver itself was the product of ineffective assistance. See United
States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 637
(7th Cir. 2005); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999).
Mariscal’s response to counsel’s motion does contain allegations that the lawyer who
negotiated the appeal waiver provided ineffective assistance. An ineffective‐assistance
claim, however, is best raised on collateral review, where a complete record can be
developed. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Harris, 394 F.3d
543, 557–58 (7th Cir. 2005).
We GRANT counsel’s motion to withdraw and DISMISS Mariscal’s appeal.