# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 25, 2013

Decided February 25, 2013

Before

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12

‐ 3069

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

REYNALDO ESCALANTE

‐ VELAZQUEZ,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:11CR00103

‐ 002

William T. Lawrence,

Judge

.

O R D E R

Reynaldo Escalante

‐ Velazquez and a codefendant sold two kilograms of cocaine to

an informant. He pleaded guilty to conspiracy to possess with intent to distribute and,

because the amount of cocaine was at least 500 grams, faced a presumptive statutory

minimum of 5 years in prison. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(ii). In his plea

agreement Escalante

‐ Velazquez waived the right to appeal his conviction or sentence on

any ground so long as the district court imposed a prison term within or below the

guidelines range stipulated by the parties, which was 60 to 71 months. He was sentenced

below that range to 51 months after the government moved to release him from the

statutory minimum to reward him for providing substantial assistance. See 18 U.S.C.

§ 3553(e). Escalante

‐ Velazquez filed a notice of appeal despite the waiver, explaining to NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 3069 Page 2

appointed counsel that he thinks 51 months in prison is too long. The lawyer asserts,

however, that the appeal is frivolous and seeks to withdraw under Anders v. California

, 386

U.S. 738, 744 (1967). Escalante

‐ Velazquez has not responded to counsel’s motion. See C IR

. R.

51(b). We confine our review to counsel’s facially adequate brief. See United States v. Schuh

,

289 F.3d 968, 973–74 (7th Cir. 2002).

We agree with counsel that an appeal would be frivolous. Not only is Escalante

‐ Velazquez bound by his appellate waiver if his guilty plea was entered voluntarily,

see United States v. Kilcrease

, 665 F.3d 924, 929 (7th Cir. 2012); United States v. Sakellarion

, 649

F.3d 634, 639 (7th Cir. 2011), but we lack jurisdiction to entertain claims that district judges

undervalued a defendant’s cooperation when exercising authority under § 3553(e) to

sentence below a statutory minimum, see 18 U.S.C. § 3742(a); United States v. Spann, 682 F.3d

565, 566 (7th Cir. 2012); United States v. Thomas, 11 F.3d 732, 735 (7th Cir. 1993). Escalante

‐ Velazquez has told counsel that he does not wish to challenge his guilty plea, and thus

counsel appropriately omits discussion about the plea colloquy and the voluntariness of the

plea. 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). Moreover, the only argument Escalante

‐ Velazquez possibly

could make is that the court undervalued his cooperation. Under 18 U.S.C. § 3553(e) a

district court may consider only a defendant’s cooperation as a reason to go below the

statutory minimum, Spann, 682 F.3d at 566; United States v. Johnson, 580 F.3d 666, 672–73 (7th

Cir. 2009), and his sentence is already below that minimum.

The motion to withdraw is GRANTED

, and the appeal is DISMISSED

.