USA v. Mario Carbajal
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and the appeal is DISMISSED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6850005-2] [6881524-1]  [16-4164]
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 October 31, 2017
Decided November 3, 2017
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.
No. 14 CR 561-1
MARIO BARJAS CARBAJAL,
Mario Barjas Carbajal began sexually abusing his stepdaughter when she was
seven years old. Over the next seven years, he beat her whenever she refused his
advances or tried to get help, and he impregnated her three times (the first and third
pregnancies resulted in the birth of a child; the second ended in a miscarriage when he
punched her in the stomach). At one point he evaded authorities by fleeing Virginia
with the girl and their family. Carbajal pleaded guilty to crossing state lines with intent
to engage in a sexual act with a minor under 12 years of age, see 18 U.S.C. § 2241(c), and
was sentenced to 55 years’ imprisonment, below the guidelines term (and statutory
maximum) of life imprisonment.
Carbajal filed a notice of appeal, but his appointed lawyer asserts that the appeal
is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Carbajal filed a copy of a letter that he sent to counsel disagreeing with her proposal to
submit an Anders brief, and we construe that filing as his opposition to counsel’s
motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses
the issues that an appeal of this kind might involve. Because the analysis in counsel’s
brief appears to be thorough, we limit our review to the subjects that she discusses and
that Carbajal identifies in his submission. 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 first tells us that she has consulted with Carbajal, and he wants his
guilty plea set aside, and so she considers challenging whether the plea was knowing
and voluntary. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012);
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). She and Carbajal both consider,
for instance, whether he could argue that he did not understand the plea proceedings
(his native language is Spanish). Carbajal asserts, specifically, that he did not
comprehend that he could be sentenced to a “draconian” prison term (he says that he
thought he was pleading guilty in exchange for a “presumed ten-year sentence”).
But counsel properly concludes that any challenge to the voluntary or knowing
nature of the plea would be frivolous. As Carbajal’s responses (via a translator) at the
plea colloquy reflect, he did not have trouble understanding the proceedings. The judge
informed Carbajal of the potential penalties, including a minimum sentence of 30 years
and a maximum of life, and explained that the court would have to calculate and
consider the guidelines range before choosing a sentence. See FED. R. CRIM. P.
11(b)(1)(H)–(I), (M). As required under Federal Rule of Criminal Procedure 11, the
judge also advised Carbajal of the nature of the charge, the trial rights he was waiving,
and the risk of removal. See FED. R. CRIM. P. 11(b)(1); United States v. Davenport, 719 F.3d
616, 618 (7th Cir. 2013). Additionally, the judge ensured that an adequate factual basis
for Carbajal’s guilty plea existed and that he entered into the plea voluntarily.
See FED. R. CRIM. P. 11(b)(2)–(3). The court omitted only one item: it did not tell Carbajal
that his sworn statements during the colloquy could be used in a perjury prosecution,
see FED. R. CRIM. P. 11(b)(1)(A), but that error was harmless because no prosecution is
pending or anticipated. See United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003);
United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).
Carbajal relatedly suggests that the district court erred by not informing him at
the plea colloquy that, as a Mexican citizen, he had a right to communicate with the
Mexican consulate. Article 36 of the Vienna Convention on Consular Relations,
Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, provides that arresting authorities must
inform a foreign national upon his arrest that he has a right to contact his consulate.
See Mordi v. Ziegler, 770 F.3d 1161, 1162 (7th Cir. 2014); Sandoval v. United States, 574 F.3d
847, 850 (7th Cir. 2009). Because the obligation to inform a foreign national of his rights
under the Vienna Convention rests solely with the arresting authority (here, the federal
government), and not the court, it would be frivolous for Carbajal to argue that the
district court erred by not informing him of those rights. See Sandoval, 574 F.3d at 850.
Next counsel considers whether Carbajal could challenge his sentence but
properly concludes that an appellate claim would be frivolous. Carbajal’s
55-year sentence is presumed reasonable because it is below the correctly calculated
guidelines term (life imprisonment, based on a total offense level of 48, capped at 43,
and a criminal history category of I). See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Mbaye, 827 F.3d 617, 622 (7th Cir. 2016). We agree with counsel that the
record provides no basis to disturb this presumption. The court adequately addressed
the sentencing factors in 18 U.S.C. § 3553(a) before arriving at a sentence. It focused on
Carbajal’s history and characteristics (difficult upbringing, current age, and diminutive
stature), his need for training or treatment (sex-offender treatment), and the nature of
the crime (traumatic, ongoing rape of a child for years). The court also discussed the
need to promote respect for the law and for deterrence, remarking that Carbajal had
flouted both federal and state laws by remaining in the United States illegally and
evading authorities to continue his crime and that it was important to deter others from
engaging in similar conduct.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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