United States of America v. Juan Cruz-Enriquez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2009
Decided June 29, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08-3050
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN CRUZ-ENRIQUEZ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06 CR 908-2
Matthew F. Kennelly,
Judge.
O R D E R
Juan Cruz-Enriquez pleaded guilty to conspiracy to possess with intent to distribute
in excess of one kilogram of heroin. See 21 U.S.C. §§ 841(a)(1) and 846. The district court
sentenced Cruz-Enriquez to the mandatory-minimum 120 months of imprisonment. Cruz-
Enriquez filed a timely notice of appeal, and his attorney has moved to withdraw because
he cannot discern a nonfrivolous argument. See Anders v. California, 386 U.S. 738 (1967).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-3050 Page 2
Cruz-Enriquez has not responded to counsel’s brief, see CIR. R. 51(b), so our review is
limited to the potential issues outlined in counsel’s brief.
Cruz-Enriquez told counsel that he wants to set aside his guilty plea, so counsel first
examines whether Cruz-Enriquez could challenge the voluntariness of this plea or the
adequacy of his plea colloquy. See FED. R. CRIM. P. 11. Cruz-Enriquez did not move to
withdraw his plea in the district court, so our review would be for plain error. See United
States v. Vonn, 535 U.S. 55, 59; United States v. Griffin, 521 F.3d 727, 730 (7th Cir. 2008).
Counsel identifies a single potential error in the Rule 11 colloquy: the district court
did not advise Cruz-Enriquez that he could be subject to restitution or any applicable
forfeiture. See FED. R. CRIM. P. 11(b)(1). But Cruz-Enriquez’s substantial rights were not
affected by the omission, because no restitution or forfeiture was ordered. See Fed. R. Crim.
P. 11(h); Griffin, 521 F.3d at 730; United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002).
Counsel also considers whether Cruz-Enriquez’s sentence could be challenged as
being unreasonable, in violation of law, or a result of an improper application of the
sentencing guidelines. But Cruz-Enriquez received the statutory-minimum sentence of 120
months, see 21 U.S.C. § 841(a)(1), and any challenge to his sentence on these bases would
therefore be frivolous. See United States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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