United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted October 31, 2017 

Decided November 3, 2017 

Before 

DIANE P. WOOD, Chief Judge 

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 16-4164 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

MARIO BARJAS CARBAJAL, 

 Defendant-Appellant.

 Appeal from the United States 

District Court for the Northern District 

of Illinois, Eastern Division. 

No. 14 CR 561-1 

Samuel Der-Yeghiayan, 

Judge. 

O R D E R 

Mario Barjas Carbajal began sexually abusing his stepdaughter when she was 

seven years old. Over the next seven years, he beat her whenever she refused his 

advances or tried to get help, and he impregnated her three times (the first and third 

pregnancies resulted in the birth of a child; the second ended in a miscarriage when he 

punched her in the stomach). At one point he evaded authorities by fleeing Virginia 

with the girl and their family. Carbajal pleaded guilty to crossing state lines with intent 

to engage in a sexual act with a minor under 12 years of age, see 18 U.S.C. § 2241(c), and 

was sentenced to 55 years’ imprisonment, below the guidelines term (and statutory 

maximum) of life imprisonment. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 16-4164 Page 2 

Carbajal filed a notice of appeal, but his appointed lawyer asserts that the appeal 

is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). 

Carbajal filed a copy of a letter that he sent to counsel disagreeing with her proposal to 

submit an Anders brief, and we construe that filing as his opposition to counsel’s 

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

the issues that an appeal of this kind might involve. Because the analysis in counsel’s 

brief appears to be thorough, we limit our review to the subjects that she discusses and 

that Carbajal identifies in his submission. 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 first tells us that she has consulted with Carbajal, and he wants his 

guilty plea set aside, and so she considers challenging whether the plea was knowing 

and voluntary. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); 

United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). She and Carbajal both consider, 

for instance, whether he could argue that he did not understand the plea proceedings 

(his native language is Spanish). Carbajal asserts, specifically, that he did not 

comprehend that he could be sentenced to a “draconian” prison term (he says that he 

thought he was pleading guilty in exchange for a “presumed ten-year sentence”). 

 

But counsel properly concludes that any challenge to the voluntary or knowing 

nature of the plea would be frivolous. As Carbajal’s responses (via a translator) at the 

plea colloquy reflect, he did not have trouble understanding the proceedings. The judge 

informed Carbajal of the potential penalties, including a minimum sentence of 30 years 

and a maximum of life, and explained that the court would have to calculate and 

consider the guidelines range before choosing a sentence. See FED. R. CRIM. P.

11(b)(1)(H)–(I), (M). As required under Federal Rule of Criminal Procedure 11, the 

judge also advised Carbajal of the nature of the charge, the trial rights he was waiving, 

and the risk of removal. See FED. R. CRIM. P. 11(b)(1); United States v. Davenport, 719 F.3d 

616, 618 (7th Cir. 2013). Additionally, the judge ensured that an adequate factual basis 

for Carbajal’s guilty plea existed and that he entered into the plea voluntarily. 

See FED. R. CRIM. P. 11(b)(2)–(3). The court omitted only one item: it did not tell Carbajal 

that his sworn statements during the colloquy could be used in a perjury prosecution, 

see FED. R. CRIM. P. 11(b)(1)(A), but that error was harmless because no prosecution is 

pending or anticipated. See United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003); 

United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). 

 

Carbajal relatedly suggests that the district court erred by not informing him at 

the plea colloquy that, as a Mexican citizen, he had a right to communicate with the 
No. 16-4164 Page 3 

Mexican consulate. Article 36 of the Vienna Convention on Consular Relations, 

Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, provides that arresting authorities must 

inform a foreign national upon his arrest that he has a right to contact his consulate. 

See Mordi v. Ziegler, 770 F.3d 1161, 1162 (7th Cir. 2014); Sandoval v. United States, 574 F.3d 

847, 850 (7th Cir. 2009). Because the obligation to inform a foreign national of his rights 

under the Vienna Convention rests solely with the arresting authority (here, the federal 

government), and not the court, it would be frivolous for Carbajal to argue that the 

district court erred by not informing him of those rights. See Sandoval, 574 F.3d at 850. 

Next counsel considers whether Carbajal could challenge his sentence but 

properly concludes that an appellate claim would be frivolous. Carbajal’s 

55-year sentence is presumed reasonable because it is below the correctly calculated 

guidelines term (life imprisonment, based on a total offense level of 48, capped at 43, 

and a criminal history category of I). See Rita v. United States, 551 U.S. 338, 347 (2007); 

United States v. Mbaye, 827 F.3d 617, 622 (7th Cir. 2016). We agree with counsel that the 

record provides no basis to disturb this presumption. The court adequately addressed 

the sentencing factors in 18 U.S.C. § 3553(a) before arriving at a sentence. It focused on 

Carbajal’s history and characteristics (difficult upbringing, current age, and diminutive 

stature), his need for training or treatment (sex-offender treatment), and the nature of 

the crime (traumatic, ongoing rape of a child for years). The court also discussed the 

need to promote respect for the law and for deterrence, remarking that Carbajal had 

flouted both federal and state laws by remaining in the United States illegally and 

evading authorities to continue his crime and that it was important to deter others from 

engaging in similar conduct. 

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