United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 28, 2016

Decided April 7, 2016

Before

DIANE P. WOOD, Chief Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 15-2384

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE RIVAS-HERRERA,

Defendant-Appellant.

Appeal from the United States District 

Court for the Central District of Illinois.

No. 4:13-cr-40066-002

Sara Darrow,

Judge.

O R D E R

Jorge Rivas-Herrera was found guilty by a jury of conspiracy to possess and 

distribute, and possession with intent to distribute, cocaine and marijuana. See 21 U.S.C. 

§§ 846, 841(a). The district court sentenced him to 60 months’ imprisonment, the 

statutory minimum, because the jury found that both counts involved at least 500 grams 

of cocaine. See id. § 841(b)(1)(B). Rivas-Herrera filed a notice of appeal, but his attorney 

asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California, 

386 U.S. 738 (1967). Rivas-Herrera opposes counsel’s motion and seeks a new trial. 

See CIR. R. 51(b). Counsel’s supporting brief explains the nature of the case and discusses 

points that could be expected to arise on appeal, and because his analysis appears to be 

thorough, we limit our review to the subjects he discusses and Rivas-Herrera’s opposing 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-2384 Page 2

arguments. 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 begins by considering whether Rivas-Herrera could challenge the

sufficiency of the evidence supporting his convictions. Rivas-Herrera contends in his 

Rule 51(b) response that most of the evidence against him was circumstantial. But 

counsel concludes, and we agree, that Rivas-Herrera could not plausibly contend that 

the evidence, viewed in the light most favorable to the government, was insufficient for 

a rational jury to find him guilty. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

United States v. Cooper, 767 F.3d 721, 727 (7th Cir. 2014). 

A special agent for the government testified at trial that he organized a controlled 

buy of drugs from Rivas-Herrera through a drug dealer-turned-informant. The 

informant testified that Rivas-Herrera offered to supply him with several kilograms of 

cocaine during a meeting in Chicago arranged by a middleman (Rivas-Herrera’s

codefendant). The government introduced recordings of phone calls and text messages 

between the informant, the middleman, and Rivas-Herrera arranging a delivery of 

cocaine to the informant at his home in Moline, Illinois. The man hired to drive 

Rivas-Herrera and the middleman to Moline testified that he and the defendant packed 

the drugs into a secret compartment in his car. The driver’s girlfriend, who was a 

passenger in the car, also testified that the packages belonged to Rivas-Herrera. 

Investigators stopped the car at the designated meeting location in Moline and seized 

Rivas-Herrera, the middleman, and the drugs. A government agent testified that 

Rivas-Herrera immediately confessed that his fingerprints would be found on the 

packages of drugs. And, in fact, an expert in latent fingerprint identification testified that 

Rivas-Herrera’s fingerprints coated the outer and inner packaging of the drugs, which 

tested positive for cocaine and marijuana. This evidence is more than enough to support 

the verdicts.

Counsel next questions whether Rivas-Herrera could challenge the 

reasonableness of his concurrent, 60-month prison terms. But that was the statutory 

minimum based upon the jury’s findings that Rivas-Herrera’s drug crimes involved at 

least 500 grams of a mixture containing cocaine. See 21 U.S.C. § 841(b)(1)(B). Absent a 

government motion under 18 U.S.C. § 3553(e), the district court lacked authority to 

impose on either count a term of imprisonment lower than the statutory minimum. 

See Dorsey v. United States, 132 S. Ct. 2321, 2327 (2012). Any argument that 60 months is 

too long would be frivolous.
No. 15-2384 Page 3

Finally, Rivas-Herrera tells us in his Rule 51(b) response that he is dissatisfied 

with his lawyer’s performance at trial, and he asks for a new trial with new counsel. But 

Rivas-Herrera has not identified any deficiency in his lawyer’s performance, a failure 

that by itself would make a claim of ineffective assistance frivolous. See United States v. 

Turcotte, 405 F.3d 515, 537 (7th Cir. 2005). In addition, we have emphasized repeatedly 

that 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, 504–05 (2003); United States v. Flores, 739 F.3d 

337, 341 (7th Cir. 2014). That appellate counsel also represented Rivas-Herrera at trial 

provides another reason to reserve any claim of ineffective assistance for collateral 

review. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). We agree with 

Rivas-Herrera’s lawyer that this appeal is frivolous.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.