# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 31, 2009

Decided April 1, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 08

‐ 1998

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ANTONIO ARROYO,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 07

‐ CR

‐ 52

Lynn Adelman,

Judge

.

O R D E R

Antonio Arroyo pleaded guilty to attempting to distribute cocaine, 21 U.S.C. §§ 846,

841(a)(1), and received the statutory minimum sentence of 120 months’ imprisonment.

Arroyo appeals, but his appointed counsel has moved to withdraw because he cannot

identify any nonfrivolous argument to pursue. See Anders v. California

, 386 U.S. 738 (1967).

Arroyo opposes dismissal of his appeal. See C IR

. R. 51(b). We confine our review to the

potential issues outlined in counsel’s supporting brief and in Arroyo’s response. See United

States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

We begin by considering whether Arroyo wishes to challenge his guilty plea.

Counsel’s submission suggests that Arroyo seeks to contest his plea, but Arroyo’s own Rule

51(b) response definitively states otherwise. Having consulted both counsel’s and Arroyo’s NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1988 Page 2

submissions, we conclude that Arroyo does not wish to challenge his guilty plea.

Accordingly, we need not evaluate the adequacy of the plea colloquy. See United States v.

Knox

, 287 F.3d 667, 671

‐ 72 (7th Cir. 2002).

In his Rule 51(b) response, however, Arroyo contends that the district court violated

Federal Rule of Criminal Procedure 11(c)(1) by participating in the plea negotiations. Rule

11(c)(1) categorically prohibits the court from participating in plea discussions between the

government and the defendant ʹ s attorney. United States v. Linder

, 530 F.3d 556, 562 (7th Cir.

2008); United States v. Kraus

, 137 F.3d 447, 452 (7th Cir. 1998). But Arroyo’s purpose in

raising this contention eludes us; in his written submission Arroyo tells us that he does not

want his guilty plea set aside, so he gains nothing by arguing about Rule 11(c)(1). See United

States v. O’Neill

, 437 F.3d 654, 664 (7th Cir. 2006). A more favorable sentence is not, as

Arroyo apparently believes, the remedy for a violation of Rule 11. See Kraus

, 137 F.3d at 458.

In any event, Arroyo is simply mistaken when he asserts that the district court

participated in the negotiations. According to Arroyo, statements made by the district court

at a hearing on his lawyer’s motion to withdraw demonstrate that the district court

participated in discussions leading to his plea agreement. At that hearing defense counsel

informed the court that Arroyo was refusing to sign the plea agreement she had negotiated

with the government and no longer wanted her to represent him. Arroyo disagreed with the

factual basis for the plea and not with the terms of the plea agreement. There is no reason to

believe that the court violated Rule 11(c)(1) at the motion to withdraw hearing, see United

States v. Reasor

, 418 F.3d 466, 479 (5th Cir. 2005), and anyhow, Arroyo later pleaded guilty

without a plea agreement.

Both defense counsel and Arroyo also evaluate whether Arroyo could argue that his

prison sentence is unreasonable. In the presentence investigation report, the probation

officer calculated a total offense level of 25 and a criminal history category of II, which

yielded a guidelines imprisonment range of 63 to 78 months. But the quantity of cocaine,

two kilograms, and Arroyo’s prior conviction for possession of marijuana triggered a

minimum term of 120 months, 21 U.S.C. § 841(b)(1)(B)(ii), and that is the sentence the court

imposed. Defense counsel perceives no worthwhile objection, but Arroyo contends that a

mandatory sentence violates the Due Process Clause. The Supreme Court and this court,

however, have consistently held that mandatory

‐ minimum sentences are constitutional. See

Chapman v. United States

, 500 U.S. 453, 467

‐ 68 (1991); United States v. Franklin

, 547 F.3d 726,

735 (7th Cir. 2008).

Accordingly, we G RANT counsel’s motion to withdraw and D ISMISS the appeal.