United States v. Juan Cruz-Enriquez

335 F. App'x 635

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 29, 2009
• Docket: 08-3050
• Status: Unpublished

Opinion

ORDER

Juan Cruz-Enriquez pleaded guilty to conspiracy to possess with intent to distribute in excess of one kilogram of heroin. See 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced Cruz-Enriquez to the mandatory-minimum 120 months of imprisonment. Cruz-Enriquez filed a timely notice of appeal, and his attorney has moved to withdraw because he cannot discern a nonfrivolous argument. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cruz-Enriquez has not responded to counsel’s brief, see CiR. R. 51(b), so our review is limited to the potential issues outlined in counsel’s brief.

Cruz-Enriquez told counsel that he wants to set aside his guilty plea, so counsel first examines whether Cruz-Enriquez could challenge the voluntariness of this plea or the adequacy of his plea colloquy. See Fed.R.CrimP. 11. Cruz-Enriquez did not move to withdraw his plea in the district court, so our review would be for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008).

Counsel identifies a single potential error in the Rule 11 colloquy: the district court did not advise Cruz-Enriquez that he could be subject to restitution or any applicable forfeiture. See Fed.R.CrimP. 11(b)(1). But Cruz-Enriquez’s substantial rights were not affected by the omission, because no restitution or forfeiture was ordered. See Fed.R.CrimP. 11(h); Griffin, 521 F.3d at 730; United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002).

Counsel also considers whether Cruz-Enriquez’s sentence could be challenged as being unreasonable, in violation of law, or a result of an improper application of the sentencing guidelines. But Cruz-Enriquez received the statutory-minimum sentence of 120 months, see 21 U.S.C. § 841(a)(1), and any challenge to his sentence on these bases would therefore be frivolous. See United States v. Duncan, 479 F.3d 924, 930 (7th Cir.2007).

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.