United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 2, 2008

Decided October 3, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

ANN CLAIRE WILLIAMS, Circuit Judge

           DIANE S. SYKES, Circuit Judge

No. 07‐3064

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JAVIER ROJO,

Defendant‐Appellant.

Appeal  from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 04 CR 1072‐6

Joan B. Gottschall,

Judge.

O R D E R

Javier Rojo pleaded guilty to possession with intent to distribute cocaine. See 21

U.S.C. § 841(a)(1).  As part of a written plea agreement, Rojo waived the right to appeal his

sentence, but retained the right to contest the validity of his guilty plea.  The district court

went below the guidelines range and sentenced Rojo to the statutory minimum: 10 years’

imprisonment and 5 years’ supervised release.

Rojo filed a notice of appeal, but appointed counsel has moved to withdraw because

he cannot identify a nonfrivolous issue for appeal.  See Anders v. California, 386 U.S. 738

(1967).  Rojo opposes counsel’s motion. See CIR. R. 51(b).  We confine our review to the

potential issues identified by Rojo and those identified in counsel’s brief.  See United States v.

Magers, 535 F.3d 608, 609 (7th Cir. 2008).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07‐3064 Page 2

Both Rojo and counsel consider challenging the guilty plea.  Rojo asserts that his wife

wrote to the district court before sentencing expressing concern that he did not understand

the plea agreement.  A letter from a counseled defendant’s relative could not constitute a

motion to withdraw a guilty plea, see United States v. Traeger, 289 F.3d 461, 471 (7th Cir.

2002); United States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), but even if it could, the record

does not show that the court received the letter.  Thus, Rojo never challenged his guilty plea

or the plea colloquy in the district court, and so we would evaluate any issue concerning the

guilty plea for plain error.  See United States v. Vonn, 535 U.S. 55, 59 (2002).

In assessing the plea colloquy, Rojo’s lawyer perceives three omissions in the

admonishments given by the district court.  We agree with counsel, however, that none

would rise to the level of plain error.  First, there was no error when the judge failed to

mention that statements Rojo made under oath could be used against him in a perjury

prosecution, see FED. R. CRIM. P. 11(b)(1)(A), because he is not facing any actual or

threatened perjury prosecution, see United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).  

Second, Rojo could not have been misled when the judge said he could cross‐

examine witnesses at trial but did not also say that Rojo could “confront” them.  See FED. R.

CRIM. P. 11(b)(1)(E).  Cross‐examination is the “main and essential” purpose of

confrontation, Lowery v. Anderson, 225 F.3d 833, 839 (7th Cir. 2000), and nothing suggests

that any of the narrow exceptions to face‐to‐face confrontation would have applied to Rojo’s

case, see Maryland v. Craig, 497 U.S. 836, 850 (1990); United States v. Hamilton, 107 F.3d 499,

503‐04 (7th Cir. 1997).  Furthermore, the written plea agreement informed Rojo that he

would have the right to confront adverse witnesses. See United States v. Driver, 242 F.3d 767,

769, 771 (7th Cir. 2001).   

Third, the judge did not explain the nature of the drug charge, see FED. R. CRIM. P.

11(b)(1)(G), but we do not require literal compliance with Rule 11 and would look to the

totality of the circumstances to determine whether Rojo actually understood the nature of

the charges, United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994).  Rojo was

represented by counsel and pleaded guilty to possession with intent to distribute cocaine, a

straightforward charge.  The government’s factual basis was equally straightforward: Rojo

obtained and sold cocaine. Rojo agreed with this factual basis but disagreed with the

government’s contention that he held a managerial role in the offense.  All of these factors

suggest that Rojo fully appreciated the charge.  See United States v. Fernandez, 205 F.3d 1020,

1025 (7th Cir. 2000).  And in fact, Rojo acknowledged in his plea agreement that his attorney

had explained the charge and that he understood its “nature and elements.”  Rojo tries to

distance himself from this admission by saying here that he did not understand the plea

agreement he signed, but he told the district court that he had enough time to discuss the
No. 07‐3064 Page 3

case with his lawyer, and that statement is presumed to be truthful.  See United States v.

Schuh, 289 F.3d 968, 975 (7th Cir. 2002).

Rojo also objects to the little attention the district court paid to the appeal waiver

during the plea colloquy.  He contends that the court should have explained the waiver in

more detail.  See FED. R. CRIM. P. 11(b)(1)(N).  Although the judge did not elaborate on the

appeal waiver, the plea agreement spells out the terms of the waiver.  Furthermore, both the

judge and the government mentioned the waiver during the Rule 11 colloquy, and Rojo

never objected or asked for clarification.  Cf. United States v. Sura, 511 F.3d 654, 662 (7th Cir.

2007) (“The problem is that no one said anything about the waiver of appellate rights.  It is

this utter silence that causes the problems here.”).  Thus we are left with Rojo’s initial sworn

statement that he spent sufficient time reviewing his case with his attorney.

We agree with counsel, then, that a challenge to Rojo’s guilty plea would be

frivolous, and for that reason any claim about Rojo’s sentence would be equally frivolous.

The appeal waiver stands or falls with the guilty plea, see, e.g., United States v. Linder, 530

F.3d 556, 561 (7th Cir. 2008); United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003), and

here the waiver would preclude Rojo from challenging his terms of imprisonment or

supervised release so long as they fall within the statutory limits, which they do.  See 21

U.S.C. § 841(b)(1)(A).

Accordingly we grant counsel’s motion to withdraw and dismiss the appeal.