United States v. Guatemala-Pacheco

502 F. App'x 609

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 9, 2013
• Docket: No. 12-3690
• Status: Published

Opinion

ORDER

Santiago Guatemala-Pacheco, a Mexican citizen, has been removed from the United States five times. In July 2012 immigration authorities found him in the country yet again, and he was charged with violating 8 U.S.C. § 1326(a). He pleaded guilty and was sentenced to 15 months’ imprisonment. He filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Guatemala-Pacheco has not responded to counsel’s submission. 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 first explains that she telephoned Guatemala-Pacheco’s prison in Mississippi but was unable to speak with him to confirm her understanding that he wants only to challenge his sentence, not his guilty plea. See United States v. Konczak, 683 F.3d 348, 349-50 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). And though a prison employee confirmed delivery of her message asking the defendant to call, she has not heard from him. Guatemala-Pacheco’s silence, including the lack of opposition to counsel’s Anders brief, suggests that she is correct that the defendant is satisfied with his guilty plea. In any event, an appellate claim about the plea colloquy or the voluntariness of Guatemala-Pacheco’s guilty plea would be frivolous. He did not move in the district court to withdraw his plea, so our review would be limited to a search for plain error. See United States v. Vonn, 535 U.S. 55, 62-68, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). The defendant could not satisfy that stringent standard because, as evidenced by the transcript of the plea colloquy, the district court substantially complied with Federal Rule of Criminal Procedure 11 in assuring that Guatemala-Pacheco understood the charge, the penalties he faced, and the rights he was waiving by pleading guilty. See Konczak, 683 F.3d at 349-50; United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).

Counsel also discusses whether Guatemala-Pacheco could raise a nonfrivolous challenge to his prison sentence and concludes that he could not. The defendant’s sentence of 15 months is at the bottom of the guidelines range of 15 to 21 months’ imprisonment resulting from his Category II criminal history and total offense level of 13 (a base offense level of 8, see U.S.S.G. § 2L1.2(a), plus another 8 levels because he was removed after a conviction for a felony drug trafficking offense, see id. § 2L1.2(b)(1)(B), less 3 levels for acceptance of responsibility, see id. § 3E1.1). This range, we agree with counsel, is correctly calculated, entitling Guatemala-Pacheco’s within-guidelines sentence to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.2011). And Guatemala-Pacheco cannot rebut this presumption because the district court also properly applied the sentencing factors of 18 U.S.C. § 3553(a), taking into account his upbringing, family responsibilities, lack of substance abuse, confinement to a wheelchair, and multiple removals from the United States before his most recent arrest.

Accordingly, we Grant counsel’s motion to withdraw and Dismiss the appeal.