United States v. Liranzo
Opinion of the Court
ORDER
Henry Garcia Liranzo pleaded guilty to one count of being present in the United
In May 2000 Mr. Liranzo was convicted of cocaine trafficking under New York law. N.Y. Penal Law § 220.39 (Consol. 2003). He was subsequently deported, and he never applied for readmission to the United States. He returned to the United States without permission, and in March 2000 was arrested in Milwaukee, Wisconsin. Because his deportation had followed the conviction for cocaine trafficking, an aggravated felony under 8 U.S.C. § 1101(a)(43)(b), Mr. Liranzo was subject to the increased penalties of 8 U.S.C. § 1326(b). He pleaded guilty pursuant to a written plea agreement and was assisted at the plea hearing by a translator.
Counsel first considers whether it would be frivolous to challenge Mr. Liranzo’s competence to enter a guilty plea. A defendant is competent to plead guilty if he has a “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” and “ ‘a rational as well as factual understanding of the proceedings against him.’” United States v. Collins, 949 F.2d 921, 927 (7th Cir. 1991) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Although the judge never stated on the record that Mr. Liranzo was competent to plead guilty, the court did ask him the appropriate questions to establish his competency. The court asked him, for example, whether he had a history of mental illness, whether he understood and had sufficiently consulted with his attorney about his guilty plea, and whether he was satisfied with his attorney’s representation. The judge was not required to hold a formal competency hearing because neither party suggested he was incompetent and nothing Mr. Liranzo said during the plea colloquy gave the court reasonable cause to question his competence. See Collins, 949 F.2d at 924 (court is not required to hold competency hearing unless there is reasonable cause to believe defendant is incompetent). We thus agree with counsel that it would be frivolous to contest Mr. Liranzo’s competence to plead guilty.
Counsel next considers whether it would be frivolous to challenge Mr. Liranzo’s plea on the ground that it was not taken in compliance with Federal Rule of Criminal Procedure 11. But Mr. Liranzo has not indicated that he wants to withdraw his guilty plea, and we have held that counsel generally should not raise a Rule 11 argument on appeal, or even explore the question in an Anders submission, unless the defendant wants his plea set aside. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002); see also United States v. Maeder, 326 F.3d 892 (7th Cir. 2003). In any event, we agree with counsel that it would be frivolous to challenge the court’s compliance with Rule 11 because the transcript reveals that the court substantially complied with the rule.
Section 4A1.2(a)(2) of the United States Sentencing Guidelines directs the sentencing court to count prior sentences in “unrelated” cases separately. If two crimes are separated by an intervening arrest, the inquiry ends there: the crimes by definition are “unrelated” and are counted separately. U.S.S.G. § 4A1.2, cmt. (n.3); United States v. Bradley, 218 F.3d 670, 673 (7th Cir. 2000). Because all of the criminal history points Mr. Liranzo contested at sentencing were for crimes separated by intervening arrests, we agree with counsel that it would be frivolous to argue that the crimes were related. See United States v. Linnear, 40 F.3d 215, 224 n. 8 (7th Cir. 1994) (even consolidated charges are unrelated if they are separated by an intervening arrest); United States v. Wilson, 41 F.3d 1403, 1404-05 (10th Cir. 1994) (intervening arrest requires bail jumping charge to be counted separately from crime for which defendant was released on bail).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
Reference
- Full Case Name
- United States v. Henry Garcia LIRANZO
- Status
- Published