### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 1104
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

M ARIO C AVIEDES

- Z UNIGA , 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

.

____________________
S UBMITTED J ANUARY 21, 2020

— D ECIDED J ANUARY 27, 2020

____________________

Before E ASTERBROOK , B RENNAN , and S CUDDER , Circuit Judges

. E ASTERBROOK , 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 (1 88 to 235 months) recommended by the Sentencing Guidelines. After filing a notice of appeal, he to ld his lawyer that he wants a trial. He also told counsel that he does not2 No. 19

- 1104

wish to contest hi s 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 filin g motions and briefs under Anders , criminal

defense 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 defendan t 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 dr ugs 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— that would be lost if the plea were withdrawn on grounds such as a district jud ge’s failure to provide all of the advice required by Fed. R. Crim. P. 11. Before presenting arguments th at could make the de fendant 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 ne ed not advance or discuss potential ways to have the plea vacated. “App ellate 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 sentenc ing, 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 boundNo. 19

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of the applicable range, easily could rise on remand. The district court gave him substantial credit for accepting responsibility. A judge might well reconsider tha t 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 d rug trade, had spent time in pretrial detention (in Colombia as well as the United States), and had assisted a prosecutor in Florida during a n investigation of counterfeiting. If w e were to vacate the sentence, the case could be re assigned 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 Gu idelines ’ 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 u nderstands these risks and makes an informed choice whether to contest the sentence. Counsel assures us that he discussed the risks and benefits with Caviedes

Zuniga, who decided not to dispute his sentence. It was accordingly unnecessary for counsel to di scuss, 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 potenti al arguments but concluded that all are frivolous. For the reasons given in a non precedential order issued contemporaneously with this opinion, we agree with counsel’s4 No. 19

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