O R D E R
In two separate criminal cases, Domingo Francisco-Juan was charged for conduct relating to kidnapping, forced labor, and illegally re-entering the United States. He pleaded guilty to several charges, and the district court imposed a life sentence. Francisco-Juan appeals, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief details the nature of the case and discusses issues that an appeal of this kind might be expected to involve. Because the analysis appears thorough and Francisco-Juan did not respond to the motion, see CIR. R. 51(b), we limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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Starting in December 2015, Francisco-Juan and others conspired to bring a minor to the United States from Guatemala in a scheme to compel her labor. As part of the conspiracy, Francisco-Juan persuaded the minor's mother that the minor would receive educational opportunities in the United States. Instead, for over five years, Francisco- Juan and his co-conspirators forced the minor to engage in labor against her will, restrained and threatened her, and prevented her from contacting her mother. Francisco-Juan also sexually abused the minor. Separately, in December 2020, Francisco- Juan re-entered the United States without authorization after having been deported on eight prior occasions.
Based on these events, Francisco-Juan was charged in two separate cases. In the first case, No. 22-20020, Francsico-Juan was charged with one count of re-entering the United States without authorization after having been deported, 8 U.S.C. § 1326(a). In the second case, No. 22-20057, Francisco-Juan was charged with several counts of forced labor and conspiracy to commit forced labor, 18 U.S.C. §§ 1594(a), (b), 1589(a), 2; and kidnapping and conspiracy to commit kidnapping, id. §§ 1201(c), 1201(a)(1), (c), 2. Francisco-Juan pleaded guilty without a plea agreement to illegal re-entry in No. 22- 20020. In a written plea agreement in No. 22-20057, Francisco-Juan agreed to plead guilty to one count each of conspiracy to commit forced labor, forced labor, conspiracy to commit kidnapping, and kidnapping, in exchange for the government's dismissal of five other counts. By the terms of that agreement, Francisco-Juan agreed to waive "all rights to appeal and/or collaterally attack his conviction and sentence," with an exception for a claim of ineffective assistance of counsel.
During a consolidated plea hearing, the district court provided Francisco-Juan with an interpreter because he is not fluent in English. Francisco-Juan confirmed that he understood the nature of the charges, the applicable penalties, and the rights he was giving up by pleading guilty. While reviewing the maximum possible penalties, the government misstated that Francisco-Juan could be subject to consecutive terms of supervised release, resulting in a potential maximum term of 23 years. The court determined that Francisco-Juan was competent to enter a plea and accepted his guilty pleas after finding the factual basis sufficient.
Before the sentencing hearing, the U.S. Probation Office prepared a presentence investigation report (PSR) in each case. For the illegal reentry case, the probation officer calculated a total offense level of 13, resulting in a guidelines range of 18 to 24 months' imprisonment and 1 to 3 years' supervised release. The four charges in the conspiracy case resulted in a total offense level of 43, a criminal history category of III, and a
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guidelines range of life. Each of the four counts carried a supervised release term of no more than 5 years. The parties did not object to these calculations. At the consolidated sentencing hearing, the district court adopted the guidelines calculations and heard statements from the minor victim and Francisco-Juan. The district court also considered the factors under 18 U.S.C. § 3553(a), noting the severity of Francisco-Juan's conduct and his repeated unlawful entries into the country to facilitate the conspiracy. The court then imposed a life sentence and 5 years' supervised release on each count in the conspiracy case to run concurrently. For the count of unlawful re- entry, the court imposed 18 months' imprisonment and 3 years' supervised release to run concurrently to the sentence imposed in the conspiracy case. In her Anders brief, counsel tells us that she advised Francisco-Juan about the risks of challenging his guilty pleas but that he still wishes to challenge them. Counsel therefore properly discusses potential challenges to the validity of the pleas. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024). Because Francisco-Juan did not move in the district court to withdraw his pleas, we would review the court's acceptance of them only for plain error. United States v. Collins, 986 F.3d 1029, 1030 (7th Cir. 2021). The district court determined that Francisco-Juan was competent to enter a plea, and it confirmed that he understood the charges against him, the possible penalties, and the rights he was waiving by pleading guilty. See F ED. R. CRIM. P. 11(b)(1)(B)-(O). The district court ensured that these admonishments were translated into Francisco-Juan's native language, Kanjobal.
As counsel notes, the only error was the government's assertion at the plea hearing that Francisco-Juan faced a maximum term of supervised release of 23 years. Because terms of supervised release run concurrently, Francisco-Juan faced a maximum term of only 5 years. 18 U.S.C. § 3624(e). Counsel correctly concludes, however, that this error would not affect Francisco-Juan's substantial rights. See F ED. R. CRIM. P. 11(h). That would require him to show a reasonable probability that he would not have entered the pleas but for the error. See United States v. Schaul, 962 F.3d 917, 924 (7th Cir. 2020). Francisco-Juan faced life sentences on multiples charges and the district court advised him that he faced removal from the country upon release from any term of imprisonment. Under these circumstances, it would be frivolous to argue that Francisco-Juan would not have pleaded guilty if he had been properly advised of the shorter maximum term of supervised release. Moreover, the PSRs correctly calculated the potential supervised release terms, and the district court adopted the correct
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calculations and imposed the 3- and 5-year terms of supervised release to run concurrently.
Counsel points out that Francisco-Juan's appeal waiver in the conspiracy case further renders frivolous any argument challenging the guilty plea or sentence on those charges. In the conspiracy case, Francisco-Juan stipulated in the plea agreement to waive "all rights to appeal and/or collaterally attack [the] conviction[s] and sentence,"
except for a claim of ineffective assistance of counsel. An appeal waiver stands or falls with the guilty plea, see United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020), and as already discussed, the plea colloquy was adequate and Franciso-Juan entered the plea voluntarily. We would decline to enforce a valid appeal waiver only where the sentence exceeds the statutory maximum or the record suggests that the court relied on a constitutionally impermissible factor such as race. Id. Neither circumstance is present here. Moreover, any claim of ineffective assistance of counsel is best saved for collateral review, where the record could be more fully developed. See Massaro v. United States,
538 U.S. 500, 504-05 (2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014). Counsel next rightly concludes that Francisco-Juan could not raise a nonfrivolous challenge to the district court's calculation of his sentence for illegal reentry. The court correctly determined that Francisco-Juan's guidelines range was 18 to 24 months. Francisco-Juan agreed with the guidelines calculation and so any challenge to it would be waived on appeal. See United States v. Boyle, 28 F.4th 798, 802 (7th Cir. 2022). Finally, counsel considers and appropriately rejects any argument that the sentence for illegal reentry is substantively unreasonable. The within-guidelines sentence of 18 months' imprisonment is presumptively reasonable. United States v. Williams, 85 F.4th 844, 847 (7th Cir. 2023), cert. denied, 144 S. Ct. 1046 (2024). And the court adequately justified the sentence based on the factors set forth in § 3553(a), discussing Francisco-Juan's repeated unauthorized border crossings to carry out the kidnapping and forced labor conspiracy.
We therefore GRANT counsel's motion to withdraw and DISMISS these appeals.
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