USA v. Reymundo Romero-Benumea

Filing 2

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 January 22, 2009 Decided January 26, 2009 Before KENNETH F. RIPPLE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE P. WOOD, Circuit Judge No. 082118 UNITED STATES OF AMERICA, PlaintiffAppellee, v. No. 1:07cr00149DFHKPF1 REYMUNDO ROMEROBENUMEA, DefendantAppellant. David F. Hamilton, Chief Judge. O R D E R Reymundo RomeroBenumea pleaded guilty to being present in the United States without permission after having been removed previously. See 8 U.S.C. § 1326(a). In the plea agreement entered into under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that RomeroBenumea would be sentenced within the imprisonment range applicable to a total offense level of 21, leaving the final determination of the criminal history category to the district court. This sentencing condition became binding on the court after it accepted the plea agreement, and RomeroBenumea was sentenced to 96 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division

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months' imprisonment, the top of the resulting range. RomeroBenumea has filed a notice of appeal, but appointed counsel is unable to discern a nonfrivolous issue for appeal and seeks permission to withdraw. See Anders v. California, 382 U.S. 738 (1967). Romero Benumea has not commented on counsel's submission. See CIR. R. 51(c). We confine our review to the potential issues identified in counsel's facially adequate brief. See United States v. Schuh, 289 F.3d 968, 97374 (7th Cir. 2002). Counsel informs us that RomeroBenumea wants his guilty plea vacated, see United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), but because RomeroBenumea did not seek to withdraw the plea in the district court, we would review the plea colloquy only for plain error in evaluating whether the plea was voluntary, see FED. R. CRIM. P. 11; United States v. Vonn, 535 U.S. 55, 63 (2002). Counsel perceives two omissions in the district court's plea colloquy, but concludes that neither would be plain error. To establish plain error, Romero Benumea would have to show a reasonable probability that he would have not pleaded guilty had the district court included the omitted information. See United States v. Dominquez Benitez, 542 U.S. 74, 83 (2004); United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008). Counsel first points out that the district court advised RomeroBenumea that he had the right to be represented by counsel at trial but did not also say that he would have the right to counsel on appeal. See FED. R. CRIM. P. 11(b)(1)(D). This omission is immaterial because the record shows that RomeroBenumea was aware that his appointed lawyer would assist him on appeal. During the plea colloquy RomeroBenumea's attorney realized that the court had mistakenly told RomeroBenumea that his plea agreement included an appeal waiver; counsel corrected the court's error and explained to RomeroBenumea, "You may have a right, if you're unhappy with these proceedings, to tell me to file a Notice of Appeal." What's more, RomeroBenumea had initialed a paragraph of his written petition to plead guilty, which admonishes that he would have "the right to the assistance of counsel at every stage of the proceedings, including an appeal." See United States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001). Counsel also suggests that the district court did not comply with Rule 11(b)(1)(M) when it told RomeroBenumea that at sentencing the court would "have to give careful consideration to a number of different factors" but specifically mentioned only the sentencing guidelines and not other factors in 18 U.S.C. § 3553(a). We have held, though, that literal recitation of Rule 11 is unnecessary; a plea colloquy that substantially complies with the Rule's admonishments is sufficient to assure a voluntary guilty plea. See United States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997); United States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995). Whether or not it would have been preferable for the district court to inform

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RomeroBenumea about the other factors listed in § 3553(a), or to have at least mentioned the statute, we agree with counsel that it would be frivolous to argue that the court's compliance with subsection (b)(1)(M) undermined RomeroBenumea's guilty plea. The court informed RomeroBenumea that it would evaluate "a number of different factors" during sentencing and, given that RomeroBenumea had agreed to be sentenced within the guidelines range, focused on the most obvious ones. Therefore, because RomeroBenumea's guilty plea stands, the agreement under Rule 11(c)(1)(C) limits the ways he can challenge his sentence, and we agree with counsel that those avenues are frivolous. Because RomeroBenumea stipulated to offense level 21, he cannot challenge the offense level calculation. See United States v. Gibson, 356 F.3d 761, 765 (7th Cir. 2004). Furthermore, any challenge to the criminal history calculation would be frivolous because, as counsel correctly concludes, there was no error, and so there can be no plain error. See United States v. Garrett, 528 F.3d 525, 527 (7th Cir. 2008). In addition, any claim that RomeroBenumea's sentence was unreasonable would also be frivolous. The court sentenced RomeroBenumea within the guidelines range, and counsel identifies nothing, and we see nothing, that would overcome the presumption of reasonableness that would attach to a sentence within the guidelines range. See Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008). Finally, we agree with counsel that RomeroBenumea should save any claim of ineffective assistance of counsel for collateral proceedings, especially here where appellate counsel also represented RomeroBenumea in the district court. See Massaro v. United States, 538 U.S. 500, 50405 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). Accordingly we GRANT counsel's motion to withdraw and DISMISS the appeal.