United States v. Jonathan Arevalo

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 1, 2022
• Docket: 21-1861
• Status: Unpublished

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED.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 April 1, 2022 Decided April 1, 2022

Before

DIANE S. SYKES, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 21-1861

UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Indiana, Hammond Division. v. No. 2:17CR138-011 JONATHAN AREVALO, Defendant-Appellant. Philip P. Simon, Judge.

ORDER

Jonathan Arevalo pleaded guilty to conspiring to participate in racketeering activity after he aided members of the Latin Dragon Nation in the gang’s affairs. See 18 U.S.C. § 1962(d). The plea agreement contemplated a term of 20 years in prison—the statutory maximum. See id. § 1963(a); FED. R. CRIM. P. 11(c)(1)(C). The district court accepted the plea and sentenced Arevalo to that term with two years’ supervised release. In his plea agreement Arevalo said, “I expressly waive my right to appeal or to contest my conviction and all components of my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground No. 21-1861 Page 2

other than a claim of ineffective assistance of counsel … .” Despite the waiver, Arevalo appeals. His appointed counsel moves to withdraw on the ground that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Because the analysis in counsel’s brief appears thorough, and Arevalo has not responded to counsel’s motion, see CIR. R. 51(b), we limit our review to the issues counsel has properly identified. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

Counsel informs us that he consulted with Arevalo and confirmed that Arevalo does not wish to withdraw his plea; thus, counsel had no reason to discuss any potential challenge to its validity. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Because an appeal waiver stands or falls with the underlying plea, and Arevalo does not contest its validity, we agree with counsel that the waiver is enforceable. See United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020).

Although Arevalo’s appeal waiver requires dismissal of the appeal, see id., counsel nevertheless considers whether in the absence of the waiver a sentencing challenge would be frivolous. This was unnecessary because, when a waiver is present, the only potential issue is whether an exception to the waiver applies. See United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). Counsel does not examine whether an exception to the enforceability of the appeal waiver could apply, but we have reviewed the record and conclude that a lawyer could not reasonably argue that an exception applies here. Arevalo’s 20-year sentence does not exceed the statutory maximum, the judge did not consider any constitutionally impermissible factors at sentencing, and the proceedings did not lack a “minimum of civilized procedure.” See id.

We thus GRANT counsel’s motion to withdraw and DISMISS the appeal.