United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 19, 2005

Decided December 20, 2005

Before

 Hon. KENNETH F. RIPPLE, Circuit Judge

 Hon. DANIEL A. MANION, Circuit Judge

 Hon. MICHAEL S. KANNE, Circuit Judge

No. 05-2276

UNITED STATES OF AMERICA, Appeal from the United States District

Plaintiff-Appellee, Court for the Northern District of

Illinois, Eastern Division

v.

No. 04 CR 44

DAMIEN MUNOZ,

Defendant-Appellant. Joan B. Gottschall,

Judge.

O R D E R

Damien Munoz pleaded guilty to one count of possession with intent to

distribute 500 or more grams of cocaine in violation of 21 U.S.C. § 841(a)(1), and was

sentenced to a 92-month term of imprisonment and four years’ supervised release. 

Munoz’s appellate counsel now seeks to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal. 

Munoz has not responded to our notice under Circuit Rule 51(b); we therefore limit

our review to the potential issues identified in counsel’s facially adequate brief. See

United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997). We agree with counsel that

an appeal premised on those potential issues would be frivolous. 

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2276 Page 2

Counsel, who did not represent Munoz in the district court, advises that

Munoz wishes to have his guilty plea set aside so that he may challenge the legality

of the traffic stop and search of his car that led to the discovery of the cocaine. 

Counsel accordingly considers arguing that Munoz’s plea was not knowing and

voluntary because the plea colloquy conducted pursuant to Federal Rule of Criminal

Procedure 11 was inadequate. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.

2002) (explaining that attorney presenting Anders submission should not even

explore possible Rule 11 claim unless defendant wants plea set aside). Munoz,

however, did not move to withdraw his guilty plea in the district court, and so we

would review the court’s compliance with Rule 11 only for plain error. See United

States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Gibson, 356 F.3d 761, 765-66

(7th Cir. 2004).

Like counsel, we conclude that any argument about the plea colloquy would be

frivolous. First, counsel notes that the district court did not specifically advise

Munoz that if he elected to go to trial he would have the right to confront the

witnesses against him. See Fed. R. Crim. P. 11(b)(1)(E). But Munoz was aware of

this right because he acknowledged it in his plea agreement, see United States v.

Driver, 242 F.3d 767, 769 (7th Cir. 2001) (noting that Rule 11 omission is harmless

when information has been conveyed to defendant in plea agreement), and the

district court generally explained what would occur at trial, including the

opportunity to question and cross-examine government witnesses. Second, counsel

points out that the district court failed to remind Munoz explicitly that he was

waiving his trial rights by pleading guilty. See Fed. R. Crim. P. 11(b()(1)(F). But the

judge explained that if Munoz chose to persist with his plea of not guilty he could go

to trial, see United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (holding that

failure to tell defendant that guilty plea would waive right to trial was harmless

where district court explained right to trial in great detail), and, regardless, here

again Munoz acknowledged in his plea agreement that he would waive his trial

rights by pleading guilty, see Driver, 242 F.3d at 769; United States v. Gilliam, 255

F.3d 428, 433 (7th Cir. 2001). And third, although the district court failed to explain

to Munoz that any false answers he gave during the colloquy could subject him to

prosecution for perjury, see Fed. R. Crim. P. 11(b)(1)(A), the omission could not have

been plain error because there is no suggestion that Munoz is subject to any current

or prospective prosecution for perjury. See United States v. Graves, 98 F.3d 258, 259

(7th Cir. 1996).

Counsel also considers arguing that Munoz’s guilty plea was not knowing and

voluntary because trial counsel’s failure to move to suppress the cocaine as a product

of an illegal stop and search rendered the lawyer’s assistance constitutionally

ineffective. A lawyer’s failure to seek suppression of critical evidence may constitute

deficient performance, see United States v. Stewart, 388 F.3d 1079, 1083-84 (7th Cir.

2004), but only if the motion would have been successful, see United States v.
No. 05-2276 Page 3

Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005); Owens v. United States, 387 F.3d 607,

610 (7th Cir. 2004). On direct appeal, of course, we cannot consider evidence outside

the record in evaluating a claim for ineffective assistance, Galbraith v. United

States, 313 F.3d 1001, 1007-08 (7th Cir. 2002), and in this case the facts surrounding

the stop and search have not been developed sufficiently to permit us to consider

whether Munoz had any meritorious basis for seeking suppression. Thus, at least at

the present time any argument about the lawyer’s performance would be premature. 

Counsel next contemplates whether Munoz could construct a nonfrivolous

challenge to his 92-month prison term. Counsel correctly notes that the term is

neither in excess of the 40-year statutory maximum applicable to offenses involving

at least 500 grams of cocaine, see 21 U.S.C. § 841(b)(1)(B)(ii), or based on an

incorrect calculation of the sentencing guidelines. Counsel, then, is left to flag as a

potential issue the reasonableness of the 92-month term the court imposed. See

United States v. Booker, 543 U.S. 220 (2005). That term, which the district court

selected after acknowledging the advisory nature of the guidelines and considering

the factors listed in 18 U.S.C. § 3553(a), is within the advisory range and presumed

to be reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). 

The court, moreover, evaluated and explicitly addressed Munoz’s principal argument

that he deserved a lower sentence because his criminal history category is

overstated, see U.S.S.G. § 4A.1(b); see also United States v. Cunningham, No. 05-

1774, 2005 WL 3029083 (7th Cir. Nov. 14, 2005) (remanding for resentencing where

court failed to address defendant’s principal argument for lower sentence), and it

would be frivolous for Munoz to argue that his sentence is unreasonable simply

because the court did not agree with his position, see Cunningham, 2005 WL

3029083, at *5 (“If the judge could, without abusing his discretion, have ruled in the

defendant’s favor, the defendant is entitled to insist that the judge exercise

discretion, though he cannot complaint if the exercise goes against him.”); United

States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005) (per curiam) (explaining that

sentencing court could but would not be required to impose sentence below guideline

range based on differential between guideline range for crack and powder cocaine). 

Counsel is unable to perceive any other reason why the term imposed might be

unreasonable, and so we agree with him that an argument about the length of his

prison term would be frivolous. 

Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is

DISMISSED.