In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1104

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIO CAVIEDES-ZUNIGA,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15-CR-00197(1) — Robert W. Gettleman, Judge.

____________________

SUBMITTED JANUARY 21, 2020 — DECIDED JANUARY 27, 2020

____________________

Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit 

Judges.

EASTERBROOK, Circuit Judge. Mario Caviedes-Zuniga 

pleaded guilty to distributing 140 grams of heroin. 21 U.S.C. 

§841(a)(1), (b)(1)(B). He was sentenced to 111 months’ imprisonment, a term 77 months below the low end of the 

range (188 to 235 months) recommended by the Sentencing 

Guidelines. After filing a notice of appeal, he told his lawyer 

that he wants a trial. He also told counsel that he does not 
2 No. 19-1104

wish to contest his sentence, if the conviction remains in 

place. Counsel evaluated the potential arguments and has 

asked to withdraw, representing that he deems the appeal 

frivolous. See Anders v. California, 386 U.S. 738 (1967). Caviedes-Zuniga received a copy of this submission but did not 

respond. See Circuit Rule 51(b).

Before filing motions and briefs under Anders, criminaldefense lawyers should find out whether their clients wish 

to contest their guilty pleas. See, e.g., United States v. Konczak, 

683 F.3d 348 (7th Cir. 2012); United States v. Knox, 287 F.3d 

667 (7th Cir. 2002). As those decisions explain, a plea bargain

may provide a defendant with substantial benefits—for example, dismissal of some counts of an indictment, a sentence 

reduction for accepting responsibility, or a concession by the 

prosecutor about the quantity of drugs or financial loss 

aeributable to the defendant’s course of conduct—that 

would be lost if the plea were withdrawn on grounds such 

as a district judge’s failure to provide all of the advice required by Fed. R. Crim. P. 11. Before presenting arguments 

that could make the defendant worse off, we held, counsel 

should obtain the defendant’s informed consent to the risks. 

If the defendant is content to let the guilty plea stand, counsel need not advance or discuss potential ways to have the 

plea vacated. “Appellate lawyers are not obliged to raise issues that could boomerang on their clients; it is no failure of 

advocacy to leave well enough alone.” Knox, 287 F.3d at 671.

Caviedes-Zuniga’s lawyer contends that the same principle applies to sentencing, for a successful effort to upset a

sentence may harm a defendant. See, e.g., United States v. 

Masters, 978 F.2d 281 (7th Cir. 1992). Caviedes-Zuniga’s situation shows why. His sentence, years below the lower bound
No. 19-1104 3

of the applicable range, easily could rise on remand. The district court gave him substantial credit for accepting responsibility. A judge might well reconsider that discount on 

learning that on appeal Caviedes-Zuniga tried to have the 

plea vacated, even if the aeempt failed. The district judge 

also observed that Caviedes-Zuniga had been induced by his 

family to enter the drug trade, had spent time in pretrial detention (in Colombia as well as the United States), and had 

assisted a prosecutor in Florida during an investigation of 

counterfeiting. If we were to vacate the sentence, the case 

could be reassigned to a judge who would weigh these 

maeers less favorably to Caviedes-Zuniga. And of course 

new criminal conduct (or misconduct in prison) might come 

to light before a resentencing, affecting the Guidelines’ range 

or the appropriate exercise of discretion.

A challenge to a sentence, no less than a challenge to the 

validity of a guilty plea, carries risks as well as conceivable

benefits for a defendant. Lawyers therefore must ensure that 

a defendant understands these risks and makes an informed 

choice whether to contest the sentence. Counsel assures us 

that he discussed the risks and benefits with CaviedesZuniga, who decided not to dispute his sentence. It was accordingly unnecessary for counsel to discuss, under the Anders procedure, potential arguments in support of resentencing, and it is also unnecessary for us to discuss them.

As we mentioned earlier, Caviedes-Zuniga did ask his 

lawyer to challenge the guilty plea. Counsel reviewed several potential arguments but concluded that all are frivolous.

For the reasons given in a nonprecedential order issued contemporaneously with this opinion, we agree with counsel’s 
4 No. 19-1104

assessment. We therefore grant counsel’s motion to withdraw and dismiss the appeal as frivolous.