United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2012

Decided December 28, 2012

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

No. 12‐2376

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JAVIER HERNANDEZ,

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1: 11CR00101‐001

William T. Lawrence,

Judge.

O R D E R

Javier Hernandez pleaded guilty to conspiring to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1). In his plea agreement he waived the right to appeal his

conviction or sentence on any ground. In exchange the government agreed to a three‐level

reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility and agreed to move to

dismiss the second count of the indictment against him. The district court sentenced him

below the calculated guidelines range to 168 monthsʹ imprisonment. Hernandez filed a

notice of appeal, but his appointed counsel believes that the appeal is frivolous and seeks to

withdraw. See Anders v. California, 386 U.S. 738 (1967). Hernandez filed a response to

counsel’s motion, see CIR. R. 51(b), but did not identify any potential issues. We therefore

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 12‐2376 Page 2

confine our review 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 first addresses whether Hernandez could challenge his guilty plea. As

counsel notes, the transcript of the plea colloquy demonstrates the district courtʹs

substantial compliance with Federal Rule of Criminal Procedure 11(b). See United States v.

Konczak, 683 F.3d 348, 349 (7th Cir. 2012). The district court explained the rights Hernandez

would relinquish by pleading guilty, advised him of the consequences of his plea, ensured

that it was voluntary, and determined that a factual basis for the plea existed. See FED. R.

CRIM. P. 11(b); United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003). Therefore, a

challenge to the plea colloquy or the voluntariness of Hernandezʹs guilty plea would be

frivolous.

Counsel also considers whether Hernandez could argue that the district court (1)

erred by concluding that he was not eligible for the “safety valve,” see 18 U.S.C. § 3553(f);

U.S.S.G. § 5C1.2(a), which allows for relief from the statutory minimum for drug offenders

who meet specific criteria, or (2) imposed an unreasonable sentence. But Hernandezʹs broad

waiver of his right to appeal makes this case frivolous. Because an appeal waiver stands or

falls with the guilty plea, United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011); United

States v. Cole, 569 F.3d 774, 776 (7th Cir. 2009), Hernandez’s appeal waiver must be enforced.

Moreover, no element of Hernandezʹs sentence exceeds the statutory maximum, see 21

U.S.C. § 841(b)(1)(A)(viii), and the court did not rely on any unconstitutionally

impermissible factor when it imposed Hernandez’s sentence, see Dowell v. United States, 694

F.3d 898, 902 (7th Cir. 2012).

Counsel is also right that, even absent the appeal waiver, a safety‐valve challenge

here would be frivolous. One requirement for “safety valve” eligibility is that the offender

have no more than one criminal‐history point, see 18 U.S.C. § 3553(f)(1); U.S.S.G. §

5C1.2(a)(1); United States v. Jones, 448 F.3d 958, 959 (7th Cir. 2006), and Hernandez has two

as a result of his past conviction for felony domestic battery. Moreover, Hernandez’s

below‐guidelines sentence is presumptively reasonable, see Rita v. United States, 551 U.S.

338, 347 (2007); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008); United States v.

George, 403 F.3d 470, 473 (7th Cir. 2005), and counsel has not identified any reason to set that

presumption aside.

The motion to withdraw is GRANTED, and the appeal is DISMISSED.