Chicago, Illinois 60604 Submitted December 19, 2005 Decided December 20, 2005 Before… v. No. 04 CR 44 DAMIEN MUNOZ

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2005
Decided December 20, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-2276
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 CR 44
DAMIEN MUNOZ,
Defendant-Appellant. Joan B. Gottschall,
Judge.
O R D E R
Damien Munoz pleaded guilty to one count of possession with intent to
distribute 500 or more grams of cocaine in violation of 21 U.S.C. § 841(a)(1), and was
sentenced to a 92-month term of imprisonment and four years’ supervised release.
Munoz’s appellate counsel now seeks to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal.
Munoz has not responded to our notice under Circuit Rule 51(b); we therefore limit
our review to the potential issues identified in counsel’s facially adequate brief. See
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997). We agree with counsel that
an appeal premised on those potential issues would be frivolous.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2276 Page 2
Counsel, who did not represent Munoz in the district court, advises that
Munoz wishes to have his guilty plea set aside so that he may challenge the legality
of the traffic stop and search of his car that led to the discovery of the cocaine.
Counsel accordingly considers arguing that Munoz’s plea was not knowing and
voluntary because the plea colloquy conducted pursuant to Federal Rule of Criminal
Procedure 11 was inadequate. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002) (explaining that attorney presenting Anders submission should not even
explore possible Rule 11 claim unless defendant wants plea set aside). Munoz,
however, did not move to withdraw his guilty plea in the district court, and so we
would review the court’s compliance with Rule 11 only for plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Gibson, 356 F.3d 761, 765-66
(7th Cir. 2004).
Like counsel, we conclude that any argument about the plea colloquy would be
frivolous. First, counsel notes that the district court did not specifically advise
Munoz that if he elected to go to trial he would have the right to confront the
witnesses against him. See Fed. R. Crim. P. 11(b)(1)(E). But Munoz was aware of
this right because he acknowledged it in his plea agreement, see United States v.
Driver, 242 F.3d 767, 769 (7th Cir. 2001) (noting that Rule 11 omission is harmless
when information has been conveyed to defendant in plea agreement), and the
district court generally explained what would occur at trial, including the
opportunity to question and cross-examine government witnesses. Second, counsel
points out that the district court failed to remind Munoz explicitly that he was
waiving his trial rights by pleading guilty. See Fed. R. Crim. P. 11(b()(1)(F). But the
judge explained that if Munoz chose to persist with his plea of not guilty he could go
to trial, see United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (holding that
failure to tell defendant that guilty plea would waive right to trial was harmless
where district court explained right to trial in great detail), and, regardless, here
again Munoz acknowledged in his plea agreement that he would waive his trial
rights by pleading guilty, see Driver, 242 F.3d at 769; United States v. Gilliam, 255
F.3d 428, 433 (7th Cir. 2001). And third, although the district court failed to explain
to Munoz that any false answers he gave during the colloquy could subject him to
prosecution for perjury, see Fed. R. Crim. P. 11(b)(1)(A), the omission could not have
been plain error because there is no suggestion that Munoz is subject to any current
or prospective prosecution for perjury. See United States v. Graves, 98 F.3d 258, 259
(7th Cir. 1996).
Counsel also considers arguing that Munoz’s guilty plea was not knowing and
voluntary because trial counsel’s failure to move to suppress the cocaine as a product
of an illegal stop and search rendered the lawyer’s assistance constitutionally
ineffective. A lawyer’s failure to seek suppression of critical evidence may constitute
deficient performance, see United States v. Stewart, 388 F.3d 1079, 1083-84 (7th Cir.
2004), but only if the motion would have been successful, see United States v.

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No. 05-2276 Page 3
Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005); Owens v. United States, 387 F.3d 607,
610 (7th Cir. 2004). On direct appeal, of course, we cannot consider evidence outside
the record in evaluating a claim for ineffective assistance, Galbraith v. United
States, 313 F.3d 1001, 1007-08 (7th Cir. 2002), and in this case the facts surrounding
the stop and search have not been developed sufficiently to permit us to consider
whether Munoz had any meritorious basis for seeking suppression. Thus, at least at
the present time any argument about the lawyer’s performance would be premature.
Counsel next contemplates whether Munoz could construct a nonfrivolous
challenge to his 92-month prison term. Counsel correctly notes that the term is
neither in excess of the 40-year statutory maximum applicable to offenses involving
at least 500 grams of cocaine, see 21 U.S.C. § 841(b)(1)(B)(ii), or based on an
incorrect calculation of the sentencing guidelines. Counsel, then, is left to flag as a
potential issue the reasonableness of the 92-month term the court imposed. See
United States v. Booker, 543 U.S. 220 (2005). That term, which the district court
selected after acknowledging the advisory nature of the guidelines and considering
the factors listed in 18 U.S.C. § 3553(a), is within the advisory range and presumed
to be reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
The court, moreover, evaluated and explicitly addressed Munoz’s principal argument
that he deserved a lower sentence because his criminal history category is
overstated, see U.S.S.G. § 4A.1(b); see also United States v. Cunningham, No. 05-
1774, 2005 WL 3029083 (7th Cir. Nov. 14, 2005) (remanding for resentencing where
court failed to address defendant’s principal argument for lower sentence), and it
would be frivolous for Munoz to argue that his sentence is unreasonable simply
because the court did not agree with his position, see Cunningham, 2005 WL
3029083, at *5 (“If the judge could, without abusing his discretion, have ruled in the
defendant’s favor, the defendant is entitled to insist that the judge exercise
discretion, though he cannot complaint if the exercise goes against him.”); United
States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005) (per curiam) (explaining that
sentencing court could but would not be required to impose sentence below guideline
range based on differential between guideline range for crack and powder cocaine).
Counsel is unable to perceive any other reason why the term imposed might be
unreasonable, and so we agree with him that an argument about the length of his
prison term would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.

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