United States of America v. Antonio R. Ferto-Castorena

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2023
Decided March 1, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1832
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO R. FERTO-CASTORENA,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:20-CR-40056-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Antonio Ferto-Castorena pleaded guilty to attempted enticement of a minor,
18 U.S.C. § 2422(b), and stipulated to the facts of a charge for production of child
pornography, id. § 2251(a). In the plea agreement, Ferto-Castorena waived his right to
appeal in exchange for the government’s promise to recommend the statutory
minimum sentence of 120 months in prison. Nevertheless, Ferto-Castorena filed this
appeal. His appointed counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Because counsel’s brief
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1832 Page 2
appears thorough and Ferto-Castorena has not responded to the motion, see 7TH
C IR . R. 51(b), we limit our review to the potential issues that counsel discusses,
see United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Ferto-Castorena used internet applications to communicate with and expose
himself to a 16-year-old girl. Ferto-Castorena arranged to meet the girl, but police
arrested him outside of her school. When police searched his cell phone, they
discovered messages with another minor girl that included sexually explicit photos
Ferto-Castorena had persuaded her to send. In exchange for the government not
pursuing a child-pornography charge, Ferto-Castorena entered into a plea agreement
and pleaded guilty to the charge of attempted enticement of a minor. At sentencing the
parties argued for the statutory minimum sentence of 120 months. The district judge
imposed a sentence at the bottom of the Sentencing Guidelines of 168 months (plus 5
years of supervised release).
Counsel confirms that Ferto-Castorena does not want to withdraw his guilty
plea, and so counsel rightly does not discuss any argument related to the validity of the
plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel does consider whether Ferto-Castorena could appeal his sentence and
correctly concludes that the appeal waiver would foreclose any challenge. In his plea
agreement, Ferto-Castorena “knowingly and voluntarily” waived the right to contest
“any aspect of[] the conviction or sentence in any type of proceeding.” The appeal
waiver “stands or falls” with the underlying guilty plea. United States v. Nulf, 978 F.3d
504, 506 (7th Cir. 2020). Counsel also appropriately rejects any argument that an
exception to the appeal waiver could apply. See United States v. Campbell, 813 F.3d 1016,
1018 (7th Cir. 2016). As counsel points out, Ferto-Castorena’s sentence does not exceed
the statutory maximum of life imprisonment, and nothing in the record suggests that
the sentence was based on constitutionally impermissible factors. Id.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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