USA v. Javier Hernandez, No. 12-2376 (7th Cir. 2012)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 December 20, 2012 Decided December 28, 2012 Before WILLIAM J. BAUER, Circuit Judge JOEL M. FLAUM, Circuit Judge KENNETH F. RIPPLE, Circuit Judge No. 12 2376 UNITED STATES OF AMERICA, Plaintiff Appellee, Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. v. No. 1: 11CR00101 001 JAVIER HERNANDEZ, Defendant Appellant. William T. Lawrence, Judge. O R D E R Javier Hernandez pleaded guilty to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). In his plea agreement he waived the right to appeal his conviction or sentence on any ground. In exchange the government agreed to a three level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility and agreed to move to dismiss the second count of the indictment against him. The district court sentenced him below the calculated guidelines range to 168 monthsʹ imprisonment. Hernandez filed a notice of appeal, but his appointed counsel believes that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Hernandez filed a response to counsel s motion, see CIR. R. 51(b), but did not identify any potential issues. We therefore No. 12 2376 Page 2 confine our review to the potential issues identified in counsel s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 74 (7th Cir. 2002). Counsel first addresses whether Hernandez could challenge his guilty plea. As counsel notes, the transcript of the plea colloquy demonstrates the district courtʹs substantial compliance with Federal Rule of Criminal Procedure 11(b). See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The district court explained the rights Hernandez would relinquish by pleading guilty, advised him of the consequences of his plea, ensured that it was voluntary, and determined that a factual basis for the plea existed. See FED. R. CRIM. P. 11(b); United States v. Blalock, 321 F.3d 686, 688 89 (7th Cir. 2003). Therefore, a challenge to the plea colloquy or the voluntariness of Hernandezʹs guilty plea would be frivolous. Counsel also considers whether Hernandez could argue that the district court (1) erred by concluding that he was not eligible for the safety valve, see 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a), which allows for relief from the statutory minimum for drug offenders who meet specific criteria, or (2) imposed an unreasonable sentence. But Hernandezʹs broad waiver of his right to appeal makes this case frivolous. Because an appeal waiver stands or falls with the guilty plea, United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011); United States v. Cole, 569 F.3d 774, 776 (7th Cir. 2009), Hernandez s appeal waiver must be enforced. Moreover, no element of Hernandezʹs sentence exceeds the statutory maximum, see 21 U.S.C. § 841(b)(1)(A)(viii), and the court did not rely on any unconstitutionally impermissible factor when it imposed Hernandez s sentence, see Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012). Counsel is also right that, even absent the appeal waiver, a safety valve challenge here would be frivolous. One requirement for safety valve eligibility is that the offender have no more than one criminal history point, see 18 U.S.C. § 3553(f)(1); U.S.S.G. § 5C1.2(a)(1); United States v. Jones, 448 F.3d 958, 959 (7th Cir. 2006), and Hernandez has two as a result of his past conviction for felony domestic battery. Moreover, Hernandez s below guidelines sentence is presumptively reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), and counsel has not identified any reason to set that presumption aside. The motion to withdraw is GRANTED, and the appeal is DISMISSED.
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