United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 3, 2007

Decided May 3, 2007

Before

Hon. RICHARD A. POSNER, Circuit Judge

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

No. 07-1058

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURO PIÑA-GONZALEZ,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Illinois 

No. 06-30052-MJR

Michael J. Reagan, 

Judge.

O R D E R

Mauro Piña-Gonzalez, a Mexican citizen, pleaded guilty to being in the

United States without permission after his removal. See 8 U.S.C. § 1326(a). PiñaGonzalez had been removed after he was convicted of the statutory rape of a 13-

year-old girl, whom he also impregnated. The district court calculated a guidelines

imprisonment range of 46 to 57 months and sentenced Piña-Gonzalez to 57 months. 

The court explicitly rejected the requests of both the government and defense

counsel that he receive a sentence at the bottom of the range; the court noted that

Piña-Gonzalez was still serving probation for the statutory rape when he committed

the immigration violation, and that his young victim was with him when he was

arrested, despite a court order prohibiting him from contacting her. 

As part of a written plea agreement, Piña-Gonzalez waived the right to

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-1058 Page 2

appeal his conviction and any sentence within the guidelines range. Despite this

waiver, Piña-Gonzalez directed his appointed counsel to appeal his sentence, but

counsel now seeks to withdraw because he cannot discern a nonfrivolous basis for

the appeal. See Anders v. California, 386 U.S. 738 (1967). Piña-Gonzalez was

invited to respond to counsel’s motion, see Cir. R. 51(b), but his only response was to

request the appointment of new counsel. Our review of the record is thus limited to

the potential issues identified in counsel’s facially adequate brief. See United States

v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

Counsel identifies two possible grounds on which Piña-Gonzalez could attack

his sentence, but the appeal waiver makes both frivolous. An appeal waiver is

enforceable if knowing and voluntary, United States v. Lockwood, 416 F.3d 604, 608

(7th Cir. 2005), so Piña-Gonzalez cannot proceed with this appeal unless he can

overcome his waiver. And Piña-Gonzalez cannot contest the waiver without

challenging his guilty plea, see United States v. Cieslowski, 410 F.3d 353, 361-62

(7th Cir. 2005); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002), which

Piña-Gonzalez has not indicated that he wishes to do. Thus, any argument relating

to his sentence would be frivolous.

Counsel also considers whether Piña-Gonzalez could argue that he received

ineffective assistance of counsel. Any such claim, however, is better suited to

collateral attack, at which time a full record may be developed. See Massaro v.

United States, 538 U.S. 500, 504-05 (2003); United States v. Harris, 394 F.3d 543,

557-58 (7th Cir. 2005).

Accordingly, counsel's motion to withdraw is GRANTED, and Piña-Gonzalez’s

filing, which we construe as a motion for the appointment of substitute counsel, is

DENIED. This appeal is DISMISSED.