United States of America v. Gustavo R. Sandoval

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2021
Decided May 6, 2021
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2861
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GUSTAVO R. SANDOVAL,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 18-cr-40067-001
Sara Darrow,
Chief Judge.
O R D E R
Gustavo Sandoval pleaded guilty to conspiring to distribute 50 grams or more of
actual methamphetamine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and was
sentenced within the guidelines to 210 months in prison and 5 years’ supervised release.
Sandoval appeals, but his counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief appears
thorough; it explains the nature of the case and the issues that an appeal of this kind
might be expected to involve. We therefore limit our review to the subjects that counsel
discusses and that Sandoval raises in his response under Circuit Rule 51(b).
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2861 Page 2
Counsel first considers whether Sandoval could raise a non-frivolous challenge
to his guilty plea. But counsel fails to tell us, as she should have, whether she consulted
with Sandoval and told him of the risks of challenging his plea. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). We need not reject counsel’s brief, however, because the transcript of
Sandoval’s plea colloquy under Federal Rule of Criminal Procedure 11 shows that any
challenge to his plea would be frivolous. See Konczak, 683 F.3d at 349. The district court
determined that Sandoval understood the charges against him, the trial rights he was
waiving, the maximum penalties for his offense, and the role of the sentencing
guidelines. See F ED. R. C RIM . P. 11(b)(1). The court further ensured that Sandoval’s plea
was supported by an adequate factual basis and made voluntarily. See F ED. R. C RIM .
P. 11(b)(2)–(3).
Counsel next considers whether Sandoval could make a non-frivolous
procedural argument against his sentence and appropriately concludes he could not.
Sandoval’s 210-month prison sentence does not exceed the statutory maximum, and the
district court imposed the statutory minimum term of 5 years’ supervised release.
See 21 U.S.C. § 841(b)(1)(A)(viii). The court properly calculated a guidelines range of 210
to 262 months in prison based on a criminal history category of I and a total offense
level of 37. In calculating Sandoval’s offense level, the court applied a two-level
enhancement for his organizing role in the drug conspiracy, citing his leadership of an
organization that purchased and distributed nearly 14 kilograms of methamphetamine
across three states. See U.S.S.G. § 3B1.1(c). Sandoval proposes challenging the factual
basis for that enhancement because, he says, his co-defendant lied about his role in the
offense. But Sandoval explicitly agreed to the enhancement in a sentencing
memorandum and again at sentencing, so he waived any right to appeal its application.
See United States v. Fuentes, 858 F.3d 1119, 1121 (7th Cir. 2017).
Counsel next rightly concludes that Sandoval could not challenge the substantive
reasonableness of his sentence. Sandoval’s within-guidelines sentence is presumptively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. McDonald,
981 F.3d 579, 581 (7th Cir. 2020). Nothing in the record could rebut that presumption.
The district court fully considered the factors under 18 U.S.C. § 3553(a) in selecting his
sentence: It recognized his limited criminal history, his supportive relationships with
family and friends, and his policy arguments challenging the guidelines’ higher
sentencing recommendations for actual methamphetamine, but it determined that those
factors were outweighed by the seriousness of the offense, his prominent role within the
drug-trafficking organization, and his substance abuse. See 18 U.S.C. § 3553(a)(1)–(2).

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No. 20-2861 Page 3
Finally, Sandoval urges that his attorney in the district court rendered ineffective
assistance by failing to investigate his case and particularly the circumstances of injuries
inflicted by his arresting officer. But this claim would be better addressed in a collateral
proceeding so that a more complete record could be developed. See Massaro v.
United States, 538 U.S. 500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457
(7th Cir. 2020).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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