                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                 Submitted October 24, 2012
                                  Decided October 26, 2012

                                           Before

                          FRANK H. EASTERBROOK, Chief Judge

                          RICHARD D. CUDAHY, Circuit Judge

                          DIANE S. SYKES, Circuit Judge


No. 11-3875

UNITED STATES OF AMERICA,                        Appeal from the United States District
     Plaintiff-Appellee,                         Court for the Northern District of Illinois,
                                                 Eastern Division.
       v.
                                                 No. 10 CR 199-1
JOSE DIAZ,
      Defendant-Appellant.                       Ruben Castillo,
                                                 Judge.

                                         ORDER
        Jose Diaz was arrested by FBI agents after he and several other men sold
methamphetamine to an informant. He pleaded guilty to conspiracy to distribute
methamphetamine and admitted during the plea colloquy that the drug amount was at
least 50 grams of actual methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii).
The district court assigned a base offense level of 34 based on the total drug weight of
330.8 grams, see U.S.S.G. § 2D1.1(a), and subtracted three levels for acceptance of
responsibility, see id. § 3E1.1. The resulting total offense level of 31, combined with Diaz’s
Category I criminal history, yielded an imprisonment range of 120 to 135 months after
factoring in the statutory minimum of 10 years for violations involving 50 or more grams of
No. 11-3875                                                                                Page 2

actual methamphetamine, see 21 U.S.C. § 841(b)(1)(A)(viii); U.S.S.G. ch. 5, pt. A,
§ 5G1.1(c)(2). The district court gave Diaz the minimum term and imposed five years’
supervised release, also the statutory minimum. Diaz filed a notice of appeal, but his newly
appointed lawyer has moved to withdraw because he cannot identify a nonfrivolous issue
to pursue. See Anders v. California, 386 U.S. 738 (1967). Diaz has responded to counsel’s
submission, see CIR. R. 51(b), and we limit our review to counsel’s facially adequate brief
and Diaz’s response, United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

        Diaz has told appellate counsel that he wants his guilty plea set aside, so counsel
first evaluates the prospect of challenging it as involuntary. Diaz did not move to withdraw
his guilty plea in the district court, so we would review the plea colloquy only for plain
error. FED. R. CRIM. P. 52(b); United States v. Vonn, 535 U.S. 55, 62–63 (2002); United States v.
Ali, 619 F.3d 713, 718–19 (7th Cir. 2010). Counsel recognizes that the plea colloquy was not
ideal and identifies several omissions from the admonishments prescribed by Rule 11(b) of
the Federal Rules of Criminal Procedure. Counsel notes that the district court failed to
apprise Diaz of his right to persist in a plea of not guilty, FED. R. CRIM. P. 11(b)(1)(B), to be
represented by appointed counsel throughout the proceedings, FED. R. CRIM. P. 11(b)(1)(D),
and to compel the attendance of witnesses at trial, FED. R. CRIM. P. 11(b)(1)(E). Counsel also
observes that the district court did not mention its obligation to consider the full range of
sentencing factors under 18 U.S.C. § 3553(a), FED. R. CRIM. P. 11(b)(1)(M), and—according to
counsel—actually misadvised Diaz about the possible penalties on conviction, FED. R. CRIM.
P. 11(b)(1)(H), (I).

        About the penalties counsel is off the mark. The number of omissions, though, is still
high, but we agree with counsel that those mistakes fall short of plain error. The district
court’s explanation of the right to a jury trial necessarily put Diaz on notice that he could
persist in a plea of not guilty, see United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988),
which Diaz knew already because he had pleaded not guilty at arraignment and stood on
that plea until the Rule 11 colloquy, see United States v. Knox, 287 F.3d 667, 670 (7th Cir.
2002). Diaz also knew about his right to appointed counsel, since the lawyer with him
during the plea colloquy was the second appointed for him during the prosecution. See
Lovett, 844 F.2d at 491–92. And given the mountain of evidence against him, including
audio recordings and a confession after his arrest, there is no reason to think that Diaz
would have gone to trial if told that he could compel the testimony of defense witnesses.
See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v. Griffin, 521 F.3d
727, 730 (7th Cir. 2008); United States v. Parker, 368 F.3d 963, 969 (7th Cir. 2004). Further, the
district court’s failure to mention the full range of § 3553(a) factors could not have
prejudiced Diaz, who was told about the “kinds of sentences available” and the
applicability of the sentencing guidelines, see 18 U.S.C. § 3553(a)(4), (5). Those were the only
sentencing factors that mattered, since the court imposed mandatory minimum terms of
No. 11-3875                                                                                Page 3

incarceration and supervised release and lacked discretion to impose a lower sentence. See
United States v. Easter, 553 F.3d 519, 523 (7th Cir. 2009); United States v. James, 487 F.3d 518,
530 (7th Cir. 2007).

       As for the penalties Diaz faced, the district court did neglect to tell him that he was
subject to at least five years of supervised release. Yet counsel correctly surmises that a
challenge to the guilty plea based on that omission would be frivolous: The district court
told Diaz that he could be imprisoned for ten years to life and then placed on supervised
release also possibly for life, and his total sentence of ten years in prison and five years on
supervised release falls within this range. See Schuh, 289 F.3d at 975; United States v. Saenz,
969 F.2d 294, 297 (7th Cir. 1992).

         That is the limit of the errors in the plea colloquy. Appellate counsel holds out the
possibility that the district court also overstated the minimum and maximum prison terms;
the indictment alleges that the conspiracy involved, not 50 or more grams of actual
methamphetamine, but “50 grams or more of mixtures and substances containing
methamphetamine.” That factual assertion turned out to be literally correct though hardly
precise: The 330.8 grams of actual methamphetamine was mixed with 1.7 grams of
impurities. Had there been no more than 50 grams of actual methamphetamine, Diaz
would have been looking at 5 to 40 years in prison, not 10 to life, and at least 4 years of
supervised release, not 5. See 21 U.S.C. § 841(b)(1)(B)(viii). The threshold of 50 grams was
met, however, and thus the possible penalties stated during the plea colloquy were
accurate. It may be that the prosecutor’s careless drafting ran afoul of Apprendi v. New
Jersey, 530 U.S. 466 (2000), because a drug amount which raises a statutory maximum must
be alleged in the indictment. That error, though, could not have undermined Diaz’s guilty
plea because during the colloquy he admitted that the offense involved 330.8 grams of
actual methamphetamine and he was told what his sentence could be. See United States v.
Wallace, 276 F.3d 360, 369 (7th Cir. 2002); United States v. Gilliam, 255 F.3d 428, 434–35 (7th
Cir. 2001).

       What remains is Diaz’s sentence. Counsel correctly concludes that any challenge
would be frivolous because Diaz received the shortest terms possible of prison and
supervised release. Diaz, for his part, contends that the district court miscalculated his
base offense level by acknowledging the drug to be actual methamphetamine when the
indictment labeled it as 50 or more grams of a mixture. This argument would be frivolous,
however, because the Sentencing Commission has directed sentencing courts to apply the
offense level corresponding to the weight of actual methamphetamine in a mixture when
doing so will yield a higher offense level. See U.S.S.G. § 2D1.1(c) n.B; United States v. Turner,
93 F.3d 276, 287 (7th Cir. 1996); United States v. Molina, 469 F.3d 408, 414 (5th Cir. 2006).
No. 11-3875                                                                            Page 4

         Diaz also maintains that his former lawyers were ineffective. This claim apparently
turns on the belief that counsel should have pressed Diaz’s frivolous objection to including
all of the actual methamphetamine when calculating the drug quantity. Whatever the
theory, a claim of ineffective assistance should be presented on collateral review, where the
necessary record can be developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Harris, 394 F.3d 543, 557–58 (7th Cir. 2005).

       Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
