Judges: Per Curiam
Filed: Mar. 26, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 25, 2009 Decided March 26, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-2987 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:06CR00107-
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 25, 2009 Decided March 26, 2009 Before WILLIAM J. BAUER, Circuit Judge TERENCE T. EVANS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-2987 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:06CR00107-0..
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NONPRECEDENTIAL DISPOSITION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 March 25, 2009
Decided March 26, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2987
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:06CR00107‐001
ISAIAS BARRIOS‐LOPEZ,
Defendant‐Appellant. David F. Hamilton,
Chief Judge.
O R D E R
Isaias Barrios‐Lopez pleaded guilty pursuant to a plea agreement to conspiracy to
possess with intent to distribute 500 grams of cocaine, 21 U.S.C. §§ 841(a)(1), 846, possession
of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), and being
present in the United States without authorization, 8 U.S.C. § 1326(a), (b)(2). He was
sentenced to a total of 387 months’ imprisonment and 5 years’ supervised release. Barrios‐
Lopez appeals his convictions, but his counsel moves to withdraw because he cannot
discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Barrios‐Lopez has responded to counsel’s submission, see CIR. R. 51(b), and we limit our
review to the potential issues identified in counsel’s facially adequate brief and Barrios‐
Lopez’s submission. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 07‐2987 Page 2
Counsel first informs us that Barrios‐Lopez does not wish to withdraw his guilty
plea, and so he properly refrains from discussing the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002).
However, Barrios‐Lopez in his 51(b) response asserts only generally that his limited English
proficiency prevented him from making a plea that was knowing and voluntary. But that
assertion is inconsistent with assurances given to the judge, under oath, when entering the
plea. Barrios‐Lopez told the judge, through an interpreter, that he fully understood the plea
and its terms. The judge asked him specific questions; his responses reflected knowledge.
Any argument that the plea was not voluntary would be frivolous.
Barrios‐Lopez also contends that his plea was involuntary because his counsel was
ineffective. According to Barrios‐Lopez, his lawyer guaranteed him a fifteen‐year sentence
(his actual sentence was more than 27 years) and failed to attend the presentence interview
with the probation officer. However, to the extent that Barrios‐Lopez is unsatisfied with
counsel’s performance due to some shortcoming not apparent from this record, claims of
ineffective assistance are better suited to a collateral action under 28 U.S.C. § 2255 so that a
fuller record can be developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003);
United States v. Wilson, 481 F.3d 475, 485 (7th Cir. 2007).
Barrios‐Lopez next suggests that violation of his Vienna Convention rights provides
some nonfrivolous basis for appeal. Article 36 of the Vienna Convention on Consular
Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, provides that upon arrest a foreign
national has the right to contact his consulate, and that the arresting officials must inform
the prisoner of that right. See Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007). It would be
frivolous, however, for Barrios‐Lopez to argue that the district court committed plain error
in failing to inform him of his rights under the Vienna Convention; he does not at all
suggest how the absence of this information rendered his guilty plea involuntary or
unknowing. And to the extent that Barrios‐Lopez believes that his attorney was ineffective
for failing to raise the issue, this claim too is better pursued in a collateral proceeding. See
Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008).
Counsel finally considers whether Barrios‐Lopez might challenge the reasonableness
of his sentence. We presume that a sentence within a properly calculated guideline range is
reasonable, so long as the district court meaningfully considered the factors set forth in 18
U.S.C. § 3553(a). Rita v. United States, 127 S. Ct. 2456, 2462‐64 (2007); United States v.
Williams, 553 F.3d 1073, 1083 (7th Cir. 2009). The court here properly calculated the
guidelines range applicable to Barrios‐Lopez. The court then discussed the factors under
§ 3553(a), noting that a within‐guidelines range sentence was justified by Barrios‐Lopez’s
multiple drug trafficking convictions and his return to crime after being deported
previously. The court further noted the need to protect the public, especially considering
No. 07‐2987 Page 3
Barrios‐Lopez’s leadership role in a dangerous gang. Counsel discerns no reason to upset
the presumption of reasonableness, and neither do we.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.