United States v. Alfonso Lucena

543 F. App'x 605

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 26, 2013
• Docket: 13-1770
• Status: Unpublished

Opinion

ORDER

An undercover police officer arranged through Juan Vellalva to buy almost six kilograms of heroin worth about $300,000. Vellalva accompanied the officer to a supermarket parking lot where they were joined by the defendant, Alfonso Lucena. Lucena instructed the officer to drive to a laundromat, where another man was waiting with a book bag containing the heroin. Surveillance agents swept in and arrested the participants after Lucena had retrieved the book bag and passed it to the undercover officer.

Lucena pleaded guilty to distributing heroin. See 21 U.S.C. § 841(a)(1). The district court sentenced him to 120 months’ imprisonment, the statutory minimum for offenses involving at least a kilogram of heroin. See 21 U.S.C. § 841(b)(1)(A). The court rejected Lucena’s argument that he satisfied the “safety valve” criteria and thus was eligible for a sentence below the minimum. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The court concluded that Lucena had met four of the five criteria but not the last because he did not give the government a complete, truthful account of his involvement in previous drug deals. See 18 U.S.C. § 3553(f)(5). At the sentencing hearing Lucena’s lawyer had insisted that the defendant never before participated in a drug deal for this supplier, but the court disbelieved that a novice would have been trusted to coordinate the delivery of a substantial quantity of heroin to the undercover officer.

Lucena filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Lucena to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). Counsel advises us that Lucena does not wish to challenge his guilty plea, so counsel’s brief properly omits discussion about the plea colloquy or the voluntariness of the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).

Counsel first considers whether Lucena could challenge the district court’s deter mination that the defendant did not satisfy the criteria for relief under the safety valve. Lueena had the burden of proving those elements by a preponderance of the evidence, see United States v. Montes, 381 F.3d 631, 634 (7th Cir.2004), and we would review the court’s factual findings for clear error, see United States v. Harrison, 431 F.3d 1007, 1013-14 (7th Cir.2005). Assertions by defense counsel that Lueena had been truthful during a debriefing were not enough to satisfy the defendant’s burden, and counsel did not call Lueena to testify or present other evidence. See United States v. Chapman, 694 F.3d 908, 914-15 (7th Cir.2012) (explaining that defense counsel’s statements are not evidence). In light of the absence of evidence about Lucena’s truthfulness during his proffer, we agree with counsel that it would be frivolous to argue that the district court clearly erred. See United States v. Nunez, 627 F.3d 274, 284-85 (7th Cir.2010); United States v. Ponce, 358 F.3d 466, 468-69 (7th Cir.2004); Montes, 381 F.3d at 637.

Counsel also considers whether Lueena could challenge the reasonableness of his prison sentence. But Lueena received the statutory minimum, so a reasonableness challenge necessarily would be frivolous. See United States v. Johnson, 580 F.3d 666, 673 (7th Cir.2009); United States v. Cooper, 461 F.3d 850, 856 (7th Cir.2006).

The motion to withdraw is GRANTED, and the appeal is DISMISSED.