NONPRECEDENTIAL DISPOSITION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 27, 2019
Decided March 29, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐1727
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 16‐CR‐40025‐001
MARCO A. RODRIGUEZ, Sara L. Darrow,
Defendant‐Appellant. Chief Judge.
O R D E R
Marco Rodriguez pleaded guilty to conspiracy to distribute at least
100 kilograms of marijuana and at least 500 grams of cocaine. See 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(B). The district judge sentenced him within the guidelines range of
100 to 125 months (based on an offense level of 30 and criminal‐history category IV) to
120 months in prison. He filed a notice of appeal, but his appointed attorney contends
that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S.
738 (1967). Rodriguez opposes counsel’s motion. See 7TH CIR. R. 51(b). Counsel’s brief
outlines the nature of the case and addresses the potential issues one might expect an
appeal like this to involve. Because counsel’s brief appears thorough (with one
No. 18‐1727 Page 2
qualification noted in the next paragraph), we limit our review to the topics he
discusses along with the issues Rodriguez raises in response. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Before we examine those topics, we pause to observe that counsel does not
address whether Rodriguez wants to challenge his plea as unknowing or involuntary.
See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel should have
consulted with Rodriguez on this question and informed us of his decision.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); Knox, 287 F.3d at 670–71.
However, we need not reject counsel’s brief because the plea transcript shows that a
challenge to the plea would be frivolous. During the plea colloquy, the judge
substantially complied with the requirements of Rule 11 of the Federal Rules of
Criminal Procedure. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002). We note
two omissions from the colloquy and both are harmless. First, the judge did not inform
Rodriguez of the government’s right to use his statements against him in a prosecution
for perjury. FED. R. CRIM. P. 11(b)(1)(A). But it would be pointless to assert this error
because there is no current or prospective prosecution for perjury. United States
v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). Second, the judge did not inform Rodriguez of
his right to persist in his plea of not guilty. FED. R. CRIM. P. 11(b)(1)(B). But a challenge
on this issue would also be frivolous: Rodriguez had already pleaded not guilty, so he
could not have been ignorant of his right to so plead. See Knox, 287 F.3d at 670.
Counsel considers whether Rodriguez’s sentence was unreasonable under the
factors set forth in 18 U.S.C. § 3553(a) and appropriately concludes that such a challenge
would be hopeless. Counsel first explores whether the judge improperly disregarded
Rodriguez’s argument for a downward variance. At sentencing counsel asked for a
downward variance because Rodriguez was responsible for a drug quantity—the
marijuana equivalent of 1,045 kilograms—that barely passed the floor of the
1,000 kilograms required for base level 30. But the judge noted that the government’s
estimate of quantity was “very conservative” based on the “absolutely credible and
uncontroverted” testimony of a narcotics agent. The agent had testified that the illicit
funds included in the presentence investigation report reflected only some of the drug
transactions attributable to Rodriguez.
Next, counsel correctly rejects as frivolous the argument that the judge ignored
his second request for a downward variance—that Rodriguez’s seven criminal‐history
points were at the low end of category IV, so his background called for a lighter
sentence. The judge addressed this argument when considering the § 3553(a) factors.
No. 18‐1727 Page 3
Expressing her concerns about recidivism and the need for deterrence, the judge
observed that Rodriguez was previously convicted of a similar drug offense and was on
probation for two other cases when he committed his current offense. The judge also
noted the seriousness of this offense. She stated that for at least four years, Rodriguez
“trafficked drugs through sophisticated means over a large geographical area” and he
was a “professional drug trafficker.” The judge adequately addressed—and rejected—
Rodriguez’s argument that his criminal‐history points overstated his criminal
background. And because the sentence is within the guidelines range, we may presume
that it is reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007). Nothing about
how the judge handled this or Rodriguez’s other arguments would rebut that
presumption.
Finally, Rodriguez contends that the judge incorrectly calculated the drug
quantity based on the amount reflected in the presentence investigation report, but an
argument on these grounds would be futile. Before sentencing Rodriguez expressly
withdrew his objections to the report in light of the government’s decision not to pursue
a statutorily based sentencing enhancement under 21 U.S.C. § 851, so counsel waived
any objections to the drug‐quantity calculation. See United States v. Garcia, 580 F.3d 528,
542 (7th Cir. 2009).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.