USA v. Miguel Vasquez-Torre
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and David F. Hamilton, Circuit Judge. [6785667-2] [6823311-1]  [16-3186]
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 21, 2017
Decided March 6, 2017
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Southern District of Illinois.
Staci M. Yandle,
O R D E R
Miguel Vasquez‐Torres sexually abused his teenage stepdaughter for at least
three years. He produced and electronically stored over 400 images of the abuse. Though
he did not distribute those images over the internet, he electronically received and
distributed a number of disturbing images and videos depicting the sexual abuse of other
children, some as young as two years old. He pleaded guilty to one count of producing
child pornography, 18 U.S.C. § 2251(a), one count of distributing child pornography,
18 U.S.C. § 2252A(a)(2)(B), and one count of receiving child pornography, 18 U.S.C.
§ 2252A(a)(2)(B). His guidelines imprisonment range for these crimes was a life sentence,
but a statutory maximum penalty lowered the effective guidelines range to 840 months.
As provided in the plea agreement, defense counsel argued for 360 months’
imprisonment while the government recommended a sentence of 480 months. The
district court sentenced Vasquez‐Torres to 540 months, above both recommendations
but still far below the advisory guidelines range.
Although his plea agreement includes a broad appeal waiver, Vasquez‐Torres
filed a notice of appeal. His appointed attorney moves to withdraw on the ground that
the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Vasquez‐Torres has
not accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). Counsel’s
brief explains the nature of the case and addresses issues that an appeal of this kind
might be expected to involve. Because the analysis in the brief appears thorough, we
limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel tells us that Vasquez‐Torres does not wish to challenge his guilty pleas
and thus forgoes discussing the adequacy of the plea colloquy. See FED. R. CRIM. P. 11;
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). But counsel does not say that he asked Vasquez‐Torres
whether he wants to challenge the guilty pleas, only that Vasquez‐Torres has “expressed
no desire” to do so. Konczak explains that the burden is on counsel to consult with and
advise the client about the risks and benefits of withdrawing a guilty plea; it is not the
client’s burden to ask. Konczak, 683 F.3d at 349. But the transcript of the plea colloquy
demonstrates that the district court substantially complied with the requirements of
Rule 11. So there is no basis for withdrawing the guilty plea as uninformed. See United
States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013); Konczak, 683 F.3d at 349.
Despite the adequacy of the colloquy, counsel considers whether Vasquez‐Torres
might wish to challenge the validity of his guilty plea on the basis of ineffective
assistance of counsel. Vasquez‐Torres’s wife and two stepdaughters submitted letters to
the court before sentencing, expressing doubts about defense counsel’s motivations and
assistance. In response, the district court held a status conference to ask Vasquez‐Torres
if he shared his family’s concerns. He told the court that he was satisfied with his
counsel. Even if he was not, as counsel correctly notes, claims of ineffective assistance are
best reserved for collateral review because the record is rarely developed sufficiently on
direct appeal to substantiate the claim. See Massaro v. United States, 538 U.S. 500, 504
(2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Because Vasquez‐Torres has no non‐frivolous ground for attacking the guilty
plea on appeal, the appeal waiver contained in the plea agreement stands. See United
States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013). With the appeal waiver intact, counsel
rightly observes that, although Vasquez‐Torres wishes to challenge the reasonableness
of his sentence, the appeal waiver would foreclose this challenge. The appeal waiver
grants Vasquez‐Torres the right to attack his sentence only if the court imposed a
sentence above the advisory guidelines range (or in several other circumstances
irrelevant to this case). His sentence of 540 months actually falls far below the guidelines
sentence of 840 months, though it is still higher than what both sides recommended. If
Vasquez‐Torres were able to press an appeal, we might question the length of his
sentence given the fact that Vasquez‐Torres (who is subject to an immigration detainer)
will likely be removed from the U.S. after serving 45 years in prison. But because he has
waived the right to appeal the reasonableness of his sentence, any discussion of the
length of his sentence would be pointless.
Counsel has identified no other arguable issues that fall outside the valid appeal
waiver, nor can we. Accordingly counsel’s motion to withdraw is GRANTED, and the
appeal is DISMISSED.
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