United States of America v. Jesus Lopez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 21, 2021
Decided November 23, 2022
Before
DIANE S. SYKES, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 20-2557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS LOPEZ,
Defendant-Appellant.
Appeal from the
United States District Court for the
Northern District of Indiana,
Hammond Division.
No. 2:16-cr-177
James T. Moody,
Judge.
O R D E R
Jesus Lopez was indicted for possessing methamphetamine with intent to
distribute after police in Hobart, Indiana, found him in possession of 450 grams of the
highly pure “ice” form of the drug during a traffic stop. He pleaded guilty pursuant to a
written plea agreement in which he waived his right to appeal.
Before sentencing Lopez moved to withdraw his plea, claiming that he did not
understand some of the terms of the plea agreement because his native language is
Spanish. The district judge denied the motion, explaining that Lopez had the assistance
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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of an interpreter during the change-of-plea hearing, the plea colloquy was thorough,
and Lopez specifically confirmed under oath that he understood the plea agreement
and all other aspects of the proceeding. The judge then imposed a sentence of
240 months in prison, the statutory maximum.
Lopez appealed, challenging the denial of his motion to withdraw his guilty plea.
He also raises a claim of sentencing error. We see no error in the judge’s ruling on the
plea-withdrawal motion. And because Lopez’s guilty plea was knowing and voluntary,
the appeal waiver is valid and enforceable, which precludes review of the sentencing
issue.
I. Background
On November 16, 2016, Lopez and his wife, Rosalba Franco, were stopped for
speeding in Hobart, Indiana. Their car smelled of burnt marijuana, so the officer asked
Franco, the driver, to step out of the vehicle and wait in the patrol car. A few minutes
later, Lopez too was escorted to the patrol car. Officers then searched the couple’s car
and recovered a bag containing more than 450 grams of methamphetamine. While alone
in the squad, Lopez and his wife discussed who should take the blame for the drugs, a
conversation that was captured on the squad’s recording system.
Lopez and Franco were indicted for possessing methamphetamine with intent to
distribute, 21 U.S.C. § 841(a)(1). Further investigation revealed that Lopez had paid
Dana Woody, a coconspirator, to transport 16 kilograms of methamphetamine from
Mexico to Chicago.
In June 2018 Lopez pleaded guilty to the single count in the indictment. Under
the terms of his written plea agreement, he agreed that “the amount of drugs involved
in both my offense and all relevant conduct … is 4.5 kilograms or more” of
methamphetamine in the “ice” form of the drug. This drug-quantity stipulation
included the methamphetamine found in Lopez’s possession and the additional amount
of meth that he paid Woody to transport. The government, in turn, agreed to
recommend a sentence “at the minimum of the applicable guideline range” as
determined by the court. The plea agreement also contained a broad appeal waiver: “I
expressly waive my right to appeal or to contest my conviction and all components of
my sentence or the manner in which my conviction or my sentence was determined or
imposed … other than a claim of ineffective assistance of counsel … .”

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No. 20-2557 Page 3
Because Spanish is Lopez’s native language and he was not fully proficient in
English, the court ordered that a Spanish-language interpreter be provided to assist him
at the change-of-plea hearing. At the beginning of the hearing, Lopez and the
interpreter were sworn in and Lopez confirmed on the record that he understood the
interpreter’s translation. The judge then moved through the elements of a guilty-plea
colloquy as required under Rule 11(b)(1) of the Federal Rules of Criminal Procedure. As
relevant here, the judge asked Lopez whether he had received a written copy of the
indictment and had fully discussed the charge, and his case more generally, with his
lawyer “with the assistance of an interpreter.” Lopez responded, “No, I know exactly
the consequences that I am facing now.” The “no” part of this response introduced
some ambiguity, so the judge recessed the proceedings so that Lopez could confer with
his lawyer and review the charge and the plea agreement with the aid of the interpreter.
The recess lasted six minutes. When the hearing resumed, Lopez confirmed that
he had received a copy of the charge and reviewed it with his lawyer with the
assistance of the interpreter; that he had thoroughly discussed the case with his lawyer,
again with the assistance of the interpreter; and that he had fully discussed the contents
of the plea agreement with his lawyer, also with the assistance of the interpreter. In
particular, he confirmed that he and his lawyer had reviewed section 7c. of the plea
agreement—the drug-quantity stipulation—with the assistance of the interpreter and
that he understood it. He also confirmed his understanding that the judge might impose
a sentence different from the one recommended by the government or predicted by his
lawyer. Finally, he confirmed on the record that he was satisfied with his lawyer’s
representation.
At the end of the plea colloquy, the judge found that Lopez was pleading guilty
knowingly and voluntarily and with a full understanding of the charged crime and the
consequences of the plea. The judge therefore accepted the plea, found Lopez guilty,
and ordered a presentence report. The judge ended the hearing by asking Lopez if he
had any questions. Lopez replied, “No, everything is all right. I understood
everything.”
The probation office promptly prepared a draft presentence report. After Lopez
filed objections, the report was finalized and submitted to the parties and the court.
Using the stipulated drug quantity of 4.5 kilograms of “ice,” the probation office began
with a base offense level of 38 and added two levels for Lopez’s role in the offense as an
organizer and leader and two levels because the offense involved the importation of
methamphetamine. Lopez’s acceptance of responsibility reduced the offense level by

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three points. When combined with a criminal history category II, the final offense level
of 39 yielded a Guidelines range of 292 to 365 months, but the range was capped by the
statutory maximum of 20 years in prison.
Roughly nine months later and before a sentencing date was set, Lopez’s
attorney moved to withdraw based on a breakdown in the attorney-client relationship.
Two weeks later, Lopez filed a pro se motion to withdraw his plea. The judge granted
counsel’s motion to withdraw, appointed new counsel, and struck the pro se motion to
permit new counsel to evaluate the matter. Two months later, Lopez’s new counsel filed
a new motion to withdraw the guilty plea, arguing that Lopez did not understand the
consequences of his plea or the parameters of the plea agreement—particularly
section 7c., which contained the stipulation regarding relevant conduct—because his
attorney did not review the indictment or the agreement with him with the assistance of
an interpreter.
The judge denied the motion without a hearing, explaining that Lopez’s new
arguments directly contradicted his unequivocal sworn statements during the plea
hearing confirming that he had fully reviewed the charge and the plea agreement with
his lawyer and with the assistance of the interpreter. The case proceeded to sentencing,
and the judge imposed a sentence of 240 months, the statutory maximum.
II. Discussion
Lopez challenges the judge’s denial of his motion to withdraw his guilty plea. He
also raises a claim of sentencing error concerning the drug quantity attributed to him as
relevant conduct. The appeal waiver in Lopez’s plea agreement does not block our
review of the first issue; an appeal waiver is valid and enforceable if the defendant
knowingly and voluntarily entered into the plea agreement and the guilty plea. United
States v. Haslam, 833 F.3d 840, 844 (7th Cir. 2016). So the question of enforcing the appeal
waiver merges with our review of the denial of the plea-withdrawal motion. “In other
words, an appeal waiver stands or falls with the underlying agreement and plea. If the
agreement and guilty plea are valid, so too is the appeal waiver.” United States v. Nulf,
978 F.3d 504, 506 (7th Cir. 2020).
We review the judge’s denial of Lopez’s plea-withdrawal motion for abuse of
discretion, and factual findings within that ruling are reviewed for clear error. United
States v. Collins, 796 F.3d 829, 834 (7th Cir. 2015). “A defendant has no absolute right to
withdraw a guilty plea before sentencing.” Id. Rather, a defendant may be permitted to
withdraw his guilty plea before sentencing if he establishes “a fair and just reason” to

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do so. F ED. R. C RIM . P. 11(d)(2)(B). Successfully showing that the plea was not knowing
and voluntary obviously satisfies this standard. United States v. Graf, 827 F.3d 581, 583
(7th Cir. 2016). “But the defendant bears a heavy burden of persuasion” to prevail on a
motion to withdraw his guilty plea. Collins, 796 F.3d at 834.
When the proffered reason to withdraw the plea contradicts answers made at the
plea hearing, the defendant faces an even steeper uphill climb. Id. That’s because the
representations made at a plea hearing “are entitled to a presumption of verity.” Id.
Where, as here, the plea-withdrawal motion “is premised on [the] defendant’s
untruthfulness during plea proceedings, a court may (unless the defendant has a
compelling explanation) reject that motion out of hand.” Id. Finally, because Lopez
concedes that the judge conducted a thorough and proper Rule 11 colloquy, his burden
is heavier still. The colloquy required by Rule 11 is designed to ensure that a
defendant’s guilty plea is entered knowingly and voluntarily; therefore, “[o]nce a
proper Rule 11 colloquy has taken place, the “‘fair and just … escape hatch is narrow.’”
Id. at 835 (quoting United States v. Mays, 593 F.3d 603, 607 (7th Cir. 2010)).
Lopez argued in his plea-withdrawal motion that he did not understand the
charge or the terms of the plea agreement because his lawyer did not review the
documents with him with the assistance of an interpreter. That claim directly
contradicts his sworn statements during the plea hearing. After a brief recess to clear up
an ambiguity that arose during the Rule 11 colloquy, Lopez confirmed under oath that
he had reviewed the indictment and the plea agreement with his lawyer with the
assistance of the interpreter and that he fully understood both. “We give special weight
to a defendant’s sworn testimony in a Rule 11 plea colloquy,” which is “presumed
true.” United States v. Smith, 989 F.3d 575, 582 (7th Cir. 2021). As the district judge
explained, Lopez presented no compelling reason—or indeed, any explanation at all—
for contradicting the sworn statements he made during his plea hearing.
In United States v. Hernandez, 731 F.3d 666, 670–71 (7th Cir. 2013), we rejected a
similar claim by a Spanish-speaking defendant that he did not knowingly plead guilty
because he lacked the language fluency to understand the proceedings. There the
record showed without contradiction that the defendant had the assistance of an
interpreter and that the judge conducted a thorough guilty-plea colloquy. Id. The same
is true here.
Lopez argues that the judge should have held an evidentiary hearing on the plea-
withdrawal motion. As we’ve explained, however, Lopez needed a compelling reason
to contradict the sworn statements he made during the plea hearing. “If no substantial

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evidence is offered, or if the allegations advanced in support of the motion are
conclusory or unreliable, the motion may be summarily denied.” Collins, 796 F.3d at
834. Lopez offered no compelling reason for contradicting himself, so the judge was
well within his discretion to deny the plea-withdrawal motion without a hearing.
Because Lopez’s guilty plea was knowing and voluntary, the appeal waiver in
his plea agreement is valid and enforceable. Nulf, 978 F.3d at 506. The waiver precludes
appeal on any basis other than a claim of ineffective assistance of counsel, so we cannot
review the sentencing issue.
AFFIRMED

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