# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 10, 2010

Decided February 11, 2010

Before

RICHARD A. POSNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 09

‐ 2301

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

MIGUEL MARISCAL, JR.,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 07

‐ 30182

‐ 01

‐ WDS

William D. Stiehl,

Judge

.

O R D E R

Miguel Mariscal pleaded guilty to conspiracy to distribute cocaine and marijuana,

conspiracy to possess cocaine and marijuana with the intent to distribute, and possession of

cocaine with the intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to

240 months’ imprisonment. Mariscal appeals, but his appointed counsel seeks to withdraw

pursuant to Anders v. California

, 386 U.S. 738 (1967), because she cannot identify any

nonfrivolous issues to raise on Mariscal’s behalf. We confine our review to the potential

issues identified in counsel’s facially adequate brief and Mariscal’s response under Circuit

Rule 51(b). See United States v. Schuh

, 289 F.3d 968, 973–74 (7th Cir. 2002). We grant

counsel’s motion to withdraw and dismiss Mariscal’s appeal.

Mariscal’s plea agreement contained a waiver precluding him from appealing or

challenging his conviction or sentence under any provision of federal law unless he was NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 2301 Page 2

sentenced to a term of imprisonment above his guidelines range. It also contained an

estimate of Mariscal’s offense level and criminal

‐ history category under the sentencing

guidelines. But both Mariscal and the government were surprised by the presentence

investigation report, which calculated an offense level and criminal

‐ history category greater

than either party had anticipated. Mariscal thought his lawyer had misled him and moved

to withdraw the plea. The district court appointed a new lawyer, and after consulting with

him, Mariscal changed his mind and withdrew his motion. The district court adopted the

presentence investigation report’s calculations, granted the government’s motion for a

below

‐ guidelines sentence in recognition of the substantial assistance Mariscal had

provided, and sentenced Mariscal to 240 months’ imprisonment.

Mariscal advised counsel that he has changed his mind again and now wishes to

withdraw his plea, so counsel properly considers challenging whether the plea was

knowing and voluntary. We agree with counsel that the only possible error the district

court committed during the change

‐ of

‐ plea colloquy was neglecting to inform Mariscal of

his right to persist in his plea of not guilty. See F ED

. R. C RIM

. P. 11(b)(1)(B). But the error is

harmless because, having previously moved to withdraw his guilty plea, Mariscal already

knew the information the district court omitted. See United States v. Driver

, 242 F.3d 767, 769

(7th Cir. 2001). Mariscal’s plea agreement also advised him of this right.

Counsel next considers challenging Mariscal’s sentence. But as counsel properly

observes, Mariscal’s appeal waiver forecloses any challenge to his sentence except a claim

that it exceeded the statutory maximum, that the district court relied on an unconstitutional

factor, or that the appeal waiver itself was the product of ineffective assistance. See United

States v. Lockwood

, 416 F.3d 604, 608 (7th Cir. 2005); United States v. Bownes

, 405 F.3d 634, 637

(7th Cir. 2005); Jones v. United States

, 167 F.3d 1142, 1145 (7th Cir. 1999).

Mariscal’s response to counsel’s motion does contain allegations that the lawyer who

negotiated the appeal waiver provided ineffective assistance. An ineffective

‐ assistance

claim, however, is best raised on collateral review, where a complete record can be

developed. Massaro v. United States

, 538 U.S. 500, 504 (2003); United States v. Harris

, 394 F.3d

543, 557–58 (7th Cir. 2005).

We GRANT counsel’s motion to withdraw and DISMISS Mariscal’s appeal.