                        NONPRECEDENTIAL DISPOSITION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 June 29, 2018
                                 Decided July 2, 2018

                                         Before

                       DIANE P. WOOD, Chief Judge

                       MICHAEL S. KANNE, Circuit Judge

                       MICHAEL Y. SCUDDER, Circuit Judge

No. 17-2843

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff-Appellee,                          Court for the Northern District of Indiana,
                                                  Fort Wayne Division.
      v.
                                                  No. 1:14CR12-001
GUADALUPE QUINTANILLA,
    Defendant-Appellant.                          Theresa L. Springmann,
                                                  Chief Judge.

                                      ORDER

        Guadalupe Quintanilla was caught transporting 38 kilograms of cocaine in a
hidden compartment of his company’s truck. He agreed to plead guilty to possessing
more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). But before he
entered his guilty plea, the United States filed an Information alleging a prior drug
conviction under 21 U.S.C. § 851. This increased the minimum term of imprisonment
from ten to twenty years. Id. § 841(b)(1)(A). His plea agreement included a waiver of his
right to appeal or to contest his conviction and all components of his sentence, or the
manner in which his conviction or sentence was determined or imposed.
No. 17-2843                                                                            Page 2

       A presentence investigation report set Quintanilla’s base offense level at 32,
based on the amount of cocaine law enforcement attributed to him, U.S.S.G.
§ 2D1.1(c)(4). It also recommended a three-level downward adjustment for acceptance
of responsibility. Id. § 3E1.1(a), (b). Quintanilla’s total offense level was therefore 29, and
his criminal-history category was I, see id. § 4A1.1(a), (c). Although the district court
adopted the report, it determined that the 20-year statutorily required minimum
sentence, 21 U.S.C. § 841(b)(1)(A), was greater than the applicable sentencing range of
87–108 months and therefore 240 months was the Guidelines point. U.S.S.G. Ch. 5,
Pt. A. At Quintanilla’s request, the district court held an evidentiary hearing to
determine whether he was eligible for a sentence reduction under the safety-valve
provision of 18 U.S.C. § 3553(f). The provision applies when, among other requirements,
a defendant “has truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan.” But the district court found Quintanilla not
credible compared to the government’s witnesses and therefore agreed with the
government that Quintanilla had not cooperated fully. The court imposed the statutory
minimum of 240 months’ imprisonment, plus 10 years’ supervised release and a special
assessment of $100.

       Quintanilla appeals, but his lawyer asserts that the appeal is frivolous and moves
to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Quintanilla did not
respond to counsel’s motion. See CIR. R. 51(b). Because counsel’s brief explains the
nature of the case and addresses the issues that an appeal of this kind might involve, we
limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

        Counsel, having verified that Quintanilla wishes to withdraw his guilty plea,
first considers whether Quintanilla could successfully challenge its voluntariness.
United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002). Because Quintanilla did not
move to withdraw his plea in the district court, we would review the adequacy of the
plea hearing for plain error. See United States v. Polak, 573 F.3d 428, 431 (7th Cir. 2009).
Counsel points out that during the plea colloquy the magistrate judge failed to inform
Quintanilla that he would have no right to withdraw his plea if the court rejected the
government’s recommended sentence. See FED. R. CRIM. P. 11(c)(3)(B). But the error is
harmless because the court substantially complied with all the other requirements of the
Federal Rule of Criminal Procedure 11 and imposed the minimum sentence. Further,
Quintanilla acknowledged in his written plea agreement: “I understand that if the
Court does not follow these agreements, I will not be allowed to withdraw my guilty
No. 17-2843                                                                         Page 3

plea.” This acknowledgment made the omission from the Rule 11 colloquy harmless.
See United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004).

       Counsel also considers whether Quintanilla could argue that his plea was
involuntary because of his limited English skills. But the record shows that the
magistrate judge provided Quintanilla with a Spanish interpreter at the plea hearing
and confirmed that an interpreter had assisted him with reading the plea agreement.
Nothing in the record suggests that Quintanilla was confused or had difficulty
communicating. Cf. United States v. Pineda-Buenaventura, 622 F.3d 761, 771 (7th Cir. 2010)
(vacating conviction because defendant’s limited education and English skills, plus
complexity of charge, suggested he did not understand basis for his plea).

       Counsel next asks whether the broad appeal waiver in Quintanilla’s plea
agreement would render any challenge to his sentence frivolous, and correctly
concludes that it would. An appeal waiver is typically enforceable as long as the plea
agreement of which it is a part is valid. See United States v. Zitt, 714 F.3d 511, 515
(7th Cir. 2013). But there are some exceptions to this principle, such as when the
government breaches the terms of the plea agreement. See United States v. O'Doherty,
643 F.3d 209, 217 (7th Cir. 2011).

       Counsel considers whether Quintanilla could argue that the government
breached its agreement because it did not honor its promise to affirmatively
recommend that the court impose a sentence “equal to the minimum of the applicable
range.” Because 240 months’ imprisonment was the lowest possible sentence given the
judge’s findings, there could not have been a breach. Any other arguments regarding
breach of the plea agreement are similarly unavailing. For example, the fact that the
government ultimately opposed Quintanilla’s eligibility for the safety-valve provision
did not constitute a breach, because neither the plea agreement nor the plea colloquy
indicated that Quintanilla’s plea negotiations involved a government promise to
support his safety-valve eligibility.

        As counsel explains, no other exception to the enforcement of the appeal waiver
applies, either. The sentence was lawful, as it was within the statutory range of 20 years
to life under 21 U.S.C. § 841(b)(1)(A), and so the unlawful-sentence exception to the
appeal waiver does not apply here. United States v. Bownes, 405 F.3d 634, 637 (7th Cir.
2005).

      Finally counsel, explaining the dubious benefit of entering a plea agreement for a
defendant in Quintanilla’s shoes, raises the argument whether Quintanilla’s appeal
No. 17-2843                                                                            Page 4

waiver was invalid for lack of consideration. Counsel proposes that Quintanilla did not
benefit from his plea agreement because he most likely would have received the same
sentence had he entered a blind plea. This is because the district court decided after
Quintanilla entered his guilty plea that he was not eligible for the safety-valve
reduction. But the government’s promise to recommend a downward adjustment for
acceptance of responsibility, which the government did in this case, amounts to
consideration for Quintanilla’s plea agreement. See United States v. Kilcrease, 665 F.3d
924, 928 (7th Cir. 2012); United States v. Thomas, 639 F.3d 786, 788 (7th Cir. 2011). Finally,
counsel notes that if Quintanilla wishes to argue that counsel was ineffective in advising
him to enter a plea agreement with an appeal waiver when he was likely facing the rest
of his life in prison under the agreement, he may do so under 28 U.S.C. § 2255 on a fully
developed record. See Massaro v. United States, 538 U.S. 500, 504 (2003).

       Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
