United States of America v. Nicolas Andrade-Alcocer

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2013
Decided January 30, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐1866
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NICOLAS ANDRADE‐ALCOCER,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:11CR00025‐001
Tanya Walton Pratt
Judge.
O R D E R
Nicolas Andrade‐Alcocer pleaded guilty to conspiring to distribute
methamphetamines. 21 U.S.C. §§ 846, 841(a)(1). In his plea agreement, he waived “his right
to appeal his conviction and any sentence imposed on any ground, including the right to
appeal conferred by 18 U.S.C. § 3724.” At sentencing the district court calculated a
guidelines range of 262 to 327 months’ imprisonment—based on a total offense level of 29
and a criminal‐history category of I—and sentenced him to 262 months.
Andrade‐Alcocer filed a notice of appeal, but his appointed counsel believes that the
appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Andrade‐Alcocer has told his attorney that he does not want to withdraw his guilty 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). Andrade‐Alcocer has filed a response, see CIR. R. 51(b), insisting that
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12‐1866 Page 2
the district court miscalculated his guideline range and his sentence is therefore excessive.
We limit our review to the issues raised in counsel’s facially adequate brief and Andrade‐
Alcocer’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
But Andrade‐Alcocer’s response ignores his attorney’s concerns regarding the appeal
waiver. Aside from limited exceptions that Andrade‐Alcocer does not invoke, we cannot
consider the issues raised in the response if they are issues that fall within the scope of his
appeal waiver. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005) (noting that
appeal waivers do not prohibit sentencing challenges “based on constitutionally
impermissible criteria, such as race . . . or a sentence in excess of the statutory maximum
sentence for the defendantʹs crime”). The terms of the appeal waiver expressly forbid a
challenge to the reasonableness of the sentence. Nor could Andrade‐Alcocer now challenge
the waiver by contesting the voluntariness of the plea agreement; he has already told his
counsel that he does not wish to challenge the plea. See United States v. Sakellarion, 649 F.3d
634, 639 (7th Cir. 2011) (noting that appellate waiver stands or falls with plea agreement as a
whole). In any event, a challenge founded on voluntariness would be frivolous:
Andrade‐Alcocer entered into the agreement after a plea colloquy that substantially
complied with Federal Rule of Criminal Procedure 11. See Konczak, 683 F.3d at 349.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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