USA v. Ortuno, Claudio

Filing 16

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 February 14, 2007 Decided February 28, 2007 Before Hon. MICHAEL S. KANNE, Circuit Judge Hon. ILANA DIAMOND ROVNER, Circuit Judge Hon. DIANE S. SYKES, Circuit Judge No. 06-2728 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CLAUDIO ORTUNO, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division No. 4:05CR00034-001 David F. Hamilton, Judge. ORDER Claudio Ortuno had sold methamphetamine to an undercover police officer in southern Indiana on three prior occasions, and when he arrived to complete a fourth sale, police officers arrested him. Ortuno pleaded guilty to distributing more than five grams of methamphetamine. See 21 U.S.C. 841(a)(1), (b)(1)(B)(viii). The district court sentenced him within the guidelines range to 135 months' imprisonment and four years' supervised release. As part of his written plea agreement, Ortuno expressly waived his right to appeal the conviction and sentence "for any reason," if the sentence imposed was within the guidelines range. Despite the waiver, however Ortuno filed a pro se notice of appeal. His appointed counsel No. 06-2728 Page 2 now moves to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous basis for the appeal. Counsel's supporting brief is facially adequate, and Ortuno has not responded to counsel's motion, see Cir. R. 51(b), so we limit our review of the record to the potential issues counsel has identified. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). Counsel questions whether Ortuno might attack the validity of the appeal waiver. We have repeatedly held that waivers of appeal are valid and binding, see, e.g., United States v. Mason, 343 F.3d 893, 893-94 (7th Cir. 2003), and that a waiver of appeal stands or falls with the rest of the plea bargain, see United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002). Counsel gives no indication that Ortuno wants to have his guilty plea set aside and risk losing the benefits conferred by his plea agreement, and thus we agree with counsel that any challenge to the validity of the appeal waiver would be frivolous. We also agree with counsel that, given the valid appeal waiver, all other arguments would be frivolous as well. See United States v. Lockwood, 416 F.3d 604, 607-08 (7th Cir. 2005). Accordingly, counsel's motion to withdraw is GRANTED and the appeal is DISMISSED.

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