United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 7, 2008

 Decided July 7, 2008

Before

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 07-2578

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH JAIME VAZQUEZ-ORTERO,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 03-CR-611

John W. Darrah,

Judge.

O R D E R

Joseph Vazquez-Otero pleaded guilty to conspiring to sell cocaine, see 21 U.S.C.

§§ 846, 841(a)(1), and the district court sentenced him to 248 months’ imprisonment. As

part of a written plea agreement, Vazquez-Otero waived his right to appeal his sentence. 

Nonetheless, Vazquez-Otero filed a notice of appeal. His appointed counsel now moves to

withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). We invited Vazquez-Otero to comment on counsel’s motion,

see CIR. R. 51(b), which he has done. We review the potential issues identified by VazquezNONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-2578 Page 2

Otero as well as those identified in counsel’s facially adequate brief. See United States v.

Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

Vazquez-Otero and his confederates were dealing substantial amounts of cocaine. 

As part of his plea agreement, Vazquez-Otero stipulated that he was responsible for at least

150 kilograms, which triggered a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1). 

Vazquez-Otero also stipulated that he had three—and only three—criminal history points

arising from a 1988 conviction under § 841(a)(1). Those stipulations, after factoring in a

three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, would have

yielded an imprisonment range of 188 to 235 months, see id. ch. 5, pt. A.

In fact, however, Vazquez-Otero had two prior convictions under § 841(a)(1),

leading the probation officer to conclude that he was a career offender, see U.S.S.G. § 4B1.1,

and that he faced a range of 292 to 365 months. After Vazquez-Otero saw the probation

officer’s calculations, he personally wrote the district court claiming that he lied about

various matters during the plea colloquy and seeking to withdraw his guilty plea. Then,

with the assistance of a new lawyer (his fourth) Vazquez-Otero moved to withdraw his

guilty plea, claiming that it was involuntary. Vazquez-Otero asserted that his previous

lawyer had failed to explain the plea agreement and threatened him with life imprisonment

if he did not plead guilty. And, he asserted, he was “disoriented” by prescription

medications during the plea colloquy. The district court summarily denied his motion. At

sentencing the government moved for a below-range sentence on the basis of VazquezOtero’s cooperation, see U.S.S.G. § 5K1.1, and as both parties had agreed in writing, the

court imposed a prison term at 85% of the low end of the range, or 248 months.

In his Anders brief, appellate counsel (now the fifth lawyer) first considers whether

Vazquez-Ortero might argue that the district judge did not fully comply with Federal Rule

of Criminal Procedure 11(b) before accepting his guilty plea. Counsel properly addresses

this potential argument because Vazquez-Ortero wants his guilty plea set aside. See United

States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). 

We readily agree with counsel that any challenge to the plea colloquy would be

frivolous. The colloquy was extensive, and the judge complied with all but two technical

requirements of Rule 11: first, the court failed to inform Vazquez-Ortero that he had the

right to counsel, and, second, the court did not explicitly inform Vazquez-Ortero that he

had the right to plead not guilty. See FED. R. CRIM. P. 11(b)(1)(D), (b)(1)(B). Neither

omission, however, undermined Vazquez-Ortero’s ability to understand his rights or to

enter a voluntary guilty plea. He obviously knew about his right to counsel because a

retained lawyer was with him during the colloquy, see United States v. Lovett, 844 F.2d 487,
No. 07-2578 Page 3

491-92 (7th Cir. 1988), and since the very purpose of the colloquy was to change his plea

from not guilty to guilty, he also knew that pleading guilty was optional, see Knox, 287 F.3d

at 670. 

Counsel next considers whether Vazquez-Ortero could argue that the district court

abused its discretion by refusing to let him to withdraw his guilty plea. See United States v.

Chavers, 515 F.3d 722, 724 (7th Cir. 2008). When a defendant moves to withdraw a plea

before sentencing, the district court may allow him to do so if he has a “fair and just

reason.” Id. Vazquez-Ortero had the burden of demonstrating a fair and just reason to

withdraw his plea, and the statements he made during his plea colloquy are accorded a

presumption of verity. United States v. Bennett, 322 F.3d 1094, 1099 (7th Cir. 2003). Because

Vazquez-Ortero received a thorough Rule 11 colloquy, he would face an “uphill battle” if

he was to challenge the district court’s refusal to let him withdraw his plea. Id.

We agree with counsel that an argument challenging the district court’s refusal to

allow Vazquez-Ortero to withdraw his guilty plea would be frivolous. Vazquez-Ortero’s

assertions about his lawyer’s performance as well as his allegations that he was disoriented

by prescription drugs are directly refuted by his own sworn statements during the plea

colloquy. The district court engaged Vazquez-Ortero in a lengthy inquiry regarding the

knowing and voluntary nature of his plea, and asked him directly whether he had

discussed the plea agreement with his lawyer, whether anyone had threatened him, and

whether he had taken any medication that day. Vazquez-Ortero gave clear answers to all

of these questions, and nothing in the record rebuts the presumption of verity granted to

his statements. See United States v. Walker, 447 F.3d 999, 1004-05 (7th Cir. 2006).

Consequently, the other potential arguments framed by counsel and VazquezOrtero, all of which concern sentencing, are necessarily frivolous because of the appeal

waiver. A waiver of appeal is binding if it was knowing and voluntary, and if the guilty

plea itself was knowing and voluntary, so too was the waiver. Nunez v. United States, 495

F.3d 544, 545-46 (7th Cir. 2007); United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999);

United State v. Wegner, 58 F.3d 280, 282 (7th Cir. 1995). 

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.