United States of America v. Joaquin J. Tankey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 14, 2009
Decided October 28, 2009
Before
JOHN L. COFFEY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐3207
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOAQUIN J. TANKEY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:06‐cr‐50074‐1
Philip G. Reinhard,
Judge.
O R D E R
Joaquin Tankey pleaded guilty to conspiring to acquire and distribute cocaine, and
to carrying a gun during that crime. He was sentenced to a total term of 216 months (156 +
60) on the two counts. Tankey has appealed despite the fact that he waived his right to do
so in a written plea agreement. His appointed counsel now seeks to withdraw under Anders
v. California, 386 U.S. 738 (1967). Tankey opposes counsel’s motion. See CIR. R. 51(b).
Counsel says Tankey wants his guilty pleas vacated, but the record is unclear on this
point. At any rate, because Tankey did not move to withdraw his pleas in district court, our
review of the plea colloquy would be limited to plain error. United States v. Griffin, 521 F.3d
727, 730 (7th Cir. 2008).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3207 Page 2
We agree with counsel that any argument challenging the adequacy of the plea
colloquy or the voluntariness of Tankey’s guilty pleas would be frivolous. Counsel asserts,
and we agree, that the district court substantially complied with Federal Rule of Criminal
Procedure 11(b) before accepting Tankey’s guilty pleas. It is true, as counsel points out, that
the district court did not advise Tankey of the court’s authority to order restitution, or that
Tankey could compel the attendance of witnesses at trial. But mentioning restitution was
unnecessary because none was, or could be, imposed. And the court’s failure to mention
Tankey’s right to compulsory process was harmless because that information was already
covered in the written plea agreement. See United States v. Driver, 242 F.3d 767, 771 (7th Cir.
2001).
So the guilty pleas are not subject to challenge, and that also means that the appeal
waiver will be enforced. See United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008); United
States v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007). Tankey responds that the waiver could not
have been voluntary because both his own counsel and the prosecutor misled him into
believing that his sentence would ultimately rest on a finding of 3.5 kilograms, not 20, of
cocaine. Tankey swore during the plea colloquy, however, that he read and understood the
entire plea agreement. The agreement includes Tankey’s concession that “at least” 3.5
kilograms were at issue, as well as the government position that the actual number was 20
kilograms.
Accordingly, we GRANT the motion to withdraw filed by counsel and DISMISS
Tankey’s appeal.

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