United States v. Fragozo-Soto

374 F. App'x 660
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 19, 2010
DocketNo. 09-3450
StatusPublished

This text of 374 F. App'x 660 (United States v. Fragozo-Soto) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fragozo-Soto, 374 F. App'x 660 (7th Cir. 2010).

Opinion

ORDER

Navor Fragozo-Soto pleaded guilty to being in the United States without permission after being deported. See 8 U.S.C. § 1326(a). He appeals, but his appointed lawyer believes the case is frivolous and seeks leave to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Fragozo-Soto did not respond to counsel’s motion. See Cir. R. 51(b). The lawyer’s supporting brief is facially adequate, so we confine our review to the potential issues she has identified. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Fragozo-Soto first entered the United States from Mexico in 1982. He was deported twice in 1996 and again in 2003, and by the time of the third removal he had incurred three felony convictions in Arizona. Fragozo-Soto was arrested in Wisconsin in March 2009 after committing a traffic violation, which brought him to the attention of immigration authorities.

At sentencing Fragozo-Soto objected to the probation officer’s conclusion that he commenced the § 1326(a) violation in 2003. The probation officer detailed employment and arrest records evidencing a continuous presence in the United States at least since October 2003. But at sentencing defense counsel told the district court that her client had returned to Mexico in late 2005 and did not cross the border again until January 2006. Fragozo-Soto did not submit any evidence to support the lawyer’s representation, and yet the government responded that it could not disprove counsel’s statement. So the district court concluded that Fragozo-Soto had last entered the United States illegally — and thus commenced this § 1326(a) violation — in January 2006, not October 2003.

In addition Fragozo-Soto personally disputed two criminal-history points that were assessed by the probation officer under U.S.S.G. § 4Al.l(b) for a 1993 felony conviction in Arizona for attempting to sell cocaine. Fragozo-Soto initially had received three years’ probation, but in March 1996 his probation was revoked. After that he served three months in prison before his probation was reinstated. Fragozo-Soto wanted his lawyer to argue that the conviction was too old to count for criminal-history points because it was incurred more than 10 years before January 2006, which, according to the district court, was when he commenced this offense. See [662]*662U.S.S.G. § 4A1.2(e)(2). Defense counsel informed the court, however, that she disagreed with the position Fragozo-Soto wanted her to advocate, and the district court overruled the objection. The court reasoned that the conviction was countable because the term of probation ultimately ran through 1999, less than 10 years before January 2006.

In light of that ruling, the district court assigned Fragozo-Soto eight criminal-history points, which placed him in a criminal-history category of IV. The court then adopted the probation officer’s recommended offense level of 13, which yielded a guidelines imprisonment range of 24 to 30 months. The district court imposed a term of 24 months.

On appeal Fragozo-Soto does not wish to challenge his guilty plea, so counsel properly refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). According to counsel there are two potential issues: whether it was error to give Fragozo-Soto two criminal-history points for his 1993 conviction and whether 24 months is a reasonable sentence. Both contentions, says counsel, would be frivolous. As for the two criminal-history points, counsel agrees with the district court that the extension of Fragozo-Soto’s probation into 1999 means that the sentence falls within 10 years of when he commenced the § 1326(a) violation in January 2006.

But counsel is mistaken. When, as here, an adult sentence of imprisonment of at least 60 days but not more than 13 months is imposed on revocation of a term of probation, application of the 10-year reach of § 4Al.l(b) is based on the date the sentence was originally imposed, not the date the sentence expires. U.S.S.G. § 4A1.1 cmt. n. 2; id. §§ 4A1.2(e), (k)(2)(B)(iii); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.2006). Because this sentence was originally imposed in 1993, more than 10 years before January 2006, counsel could argue that Fragozo-Soto should not have received criminal-history points. And if he had not received those two points, his criminal-history category would have been III, and his imprisonment range would have dropped to 18 to 24 months.

Nonetheless we agree with counsel’s conclusion that an appeal based on this issue would be frivolous. We may put aside that defense counsel (the same lawyer represents Fragozo-Soto in this court) overlooked the argument at sentencing and thus forfeited the claim. See United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.2005); United States v. Richardson, 238 F.3d 837, 841 (7th Cir.2001). The greater hurdle for Fragozo-Soto is that he could not benefit from resentenc-ing because his offense level was miscalculated in his favor and would be revised upward on remand. A violation of § 1326(a) produces a base offense level of 8, see U.S.S.G. § 2L1.2(a), which is increased by the greatest of several specific offense characteristics, see id. § 2L1.2(b)(l). Even if Fragozo-Soto’s 1993 conviction should not have counted in his criminal-history calculation, that offense still should have increased his offense level by 12 because it is a felony drug-trafficking crime for which he received a sentence of 13 months or less. See id. § 2L1.2(b)(l)(B); United States v. Olmos-Esparza, 484 F.3d 1111, 1114 (9th Cir.2007); United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1311-15 (11th Cir.2005); United States v. Gonzalez, 112 F.3d 1325, 1330-31 (7th Cir.1997). Yet instead of a 12-level increase, the probation officer recommended, and the district court imposed, an 8-level increase under § 2L1.2(b)(l)(C) for [663]*663a different, non-drug conviction that qualified as an aggravated felony. After factoring in a 3-level reduction for acceptance of responsibility, Fragozo-Soto’s total offense level should have been 17, not 13. So even with a corrected criminal-history category of III, his imprisonment range of 30 to 37 months would exceed the range of 24 to 30 months calculated by the district court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Arviso-Mata
442 F.3d 382 (Fifth Circuit, 2006)
Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Torres-Duenas
461 F.3d 1178 (Tenth Circuit, 2006)
United States v. Jorge Ramos Gonzalez
112 F.3d 1325 (Seventh Circuit, 1997)
United States v. Thomas C. Richardson
238 F.3d 837 (Seventh Circuit, 2001)
United States v. Pedro Lopez-Flores
275 F.3d 661 (Seventh Circuit, 2001)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)
United States v. Rene Jaimes-Jaimes
406 F.3d 845 (Seventh Circuit, 2005)
United States v. David H. Swanson
483 F.3d 509 (Seventh Circuit, 2007)
United States v. Leobardo Olmos-Esparza
484 F.3d 1111 (Ninth Circuit, 2007)
United States v. Heckel
570 F.3d 791 (Seventh Circuit, 2009)
United States v. Abbas
560 F.3d 660 (Seventh Circuit, 2009)
United States v. Diaz
533 F.3d 574 (Seventh Circuit, 2008)
United States v. Poetz
582 F.3d 835 (Seventh Circuit, 2009)
United States v. Mays
593 F.3d 603 (Seventh Circuit, 2010)
United States v. Anderson
517 F.3d 953 (Seventh Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
374 F. App'x 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fragozo-soto-ca7-2010.