NONPRECEDENTIAL DISPOSITION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 June 28, 2019
Decided June 28, 2019
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18‐2423
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 15 CR 262‐3
MIGUEL GONZALEZ,
Defendant‐Appellant. Thomas M. Durkin,
Judge.
ORDER
Miguel Gonzalez pleaded guilty to conspiring to distribute and to distributing
cocaine. See 21 U.S.C. §§ 846, 841(b)(1)(B). He was sentenced to 94 months in prison. He
now appeals his conviction and sentence, but his appointed counsel asserts that the
appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967).
Counsel has submitted a brief explaining Gonzalez’s case and addressing issues that the
appeal might involve. Because counsel’s analysis appears sufficient, and Gonzalez does
not oppose the motion, we limit our review to the subjects that he discusses. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 18‐2423 Page 2
Counsel informs us that Gonzalez wishes to contest his guilty plea, and counsel
considers two potential challenges to the validity of the plea. The first is based on
possible noncompliance with Federal Rule of Criminal Procedure 11. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). But counsel correctly concludes that such a challenge would be pointless
because the plea colloquy complied with Rule 11. The judge determined that Gonzalez
was competent to plead guilty and advised Gonzalez of his rights and his waiver of
these rights if the judge accepted his plea. See FED. R. CRIM. P. 11(b)(1)(B)–(F). Counsel
notes that the judge omitted from the colloquy the possibility of restitution and
forfeiture, but he correctly concludes that the omissions were immaterial because the
judge imposed neither. See FED. R. CRIM. P. 11(b)(1)(J)–(K). Thus, any argument that the
plea was not knowing or voluntary because the colloquy impermissibly deviated from
Rule 11 would be frivolous. United States v. Bowlin, 534 F.3d 654, 659–60 (7th Cir. 2008).
Second, counsel considers whether Gonzalez could plausibly challenge the plea
by arguing that, despite the compliance with Rule 11, he nonetheless did not
understand the plea. Counsel observes that Gonzalez reserved the right to argue (and
thus may have believed) that he was responsible for only 9 kilograms of cocaine, yet the
district judge found and Gonzalez stipulated elsewhere in the plea agreement that he
was responsible for 15 kilograms. But we agree with counsel that an argument based on
this divergence would be frivolous. At the change‐of‐plea hearing, Gonzalez admitted
under oath to buying two kilograms of cocaine from a supplier and a total of six
kilograms from undercover officers, as well as to selling seven kilograms of cocaine.
This sums to 15 kilograms. To contest the calculation, Gonzalez would have to reject his
prior sworn testimony. But without any rationale for the recantation, this strategy
would be frivolous, for “[w]e may reject out of hand, absent a compelling explanation,
factual allegations that depend on the defendant having committed perjury at a plea
hearing.” See United States v. Purnell, 701 F.3d 1186, 1190–91 (7th Cir. 2012).
Counsel next considers whether the district judge erred at sentencing. We agree
with counsel that Gonzalez could raise no plausible argument on this point. Counsel
proposes no error, and we see none, in the judge’s calculation of the applicable drug
quantity (he relied on Gonzalez’s own testimony), the resulting base offense level of 32
(29 after Gonzalez’s acceptance of responsibility), the criminal history score of I, or
guidelines range of 87 to 108 months. See U.S.S.G. § 2D1.1. And challenging the
94‐month sentence as otherwise procedurally or substantively unreasonable would be
frivolous. The judge adequately explained this within‐guidelines sentence, addressing
the arguments in mitigation and the relevant factors under 18 U.S.C. § 3553(a).
No. 18‐2423 Page 3
See United States v. Garcia‐Segura, 717 F.3d 566, 568 (7th Cir. 2013); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Specifically, the judge found that the
sentence was necessary to deter Gonzalez because he was a midlevel dealer—a
“necessary cog” in the “giant machine” of drug trafficking—who continued to deal
drugs “even after being caught.” Gonzalez’s sentence is presumed reasonable because it
is within the guidelines range, and we agree with counsel that the record suggests no
potential reason to disturb that presumption. See Mykytiuk, 415 F.3d at 608.
Last, counsel considers whether Gonzalez could plausibly argue that his lawyer
rendered constitutionally ineffective assistance. But that claim should be reserved for
collateral review, where Gonzalez may develop a fuller record. See United States
v. Stokes, 726 F.3d 880, 897–98 (7th Cir. 2013) (citing Massaro v. United States, 538 U.S.
500, 504–05 (2003)).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.