United States v. Cortez-Cruz, Laurean , 208 F. App'x 499 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2007
Decided February 5, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2063
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 05 CR 183
LAUREANO CORTEZ-CRUZ,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
During the fall of 2005, Laureano Cortez-Cruz participated in three cocaine
sales; unbeknownst to him, the supposed buyers were an informant and an
undercover special agent working for the Drug Enforcement Administration.
Cortez-Cruz and his co-defendant, Santos Lanza, were arrested during the third
transaction, which involved 465 grams of cocaine. Cortez-Cruz quickly entered into
a written plea agreement in which he admitted possessing the cocaine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1); prosecutors agreed to drop the
charges stemming from the first two sales, which involved much smaller quantities.
He received a three-level downward adjustment for acceptance of responsibility,
and was sentenced to 57 months’ imprisonment, the bottom of the guidelines range.
No. 06-2063 Page 2
Cortez-Cruz filed a notice of appeal, but his appointed counsel now seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to
discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially
adequate, and Cortez-Cruz has responded to our invitation under Circuit Rule 51(b)
to comment on counsel’s submission. We limit our review to the potential issues
identified in counsel’s brief and Cortez-Cruz’s response. See United States v. Schuh,
289 F.3d 968, 974 (7th Cir. 2002).
First, counsel informs us that Cortez-Cruz does not wish to have his guilty
plea vacated “unless the district court would reduce his sentence.” But it is highly
unlikely that setting aside the guilty plea and allowing Cortez-Cruz to start over
would result in a lower sentence; on the contrary, he would risk a longer sentence
because he would lose the three-level reduction for acceptance of responsibility. See
United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002). In his response to
counsel’s Anders brief, Cortez-Cruz gives no indication that he otherwise wants the
plea vacated, and thus we do not further consider the voluntariness of the plea or
the adequacy of the colloquy. See id. at 670-71.
The one potential issue that counsel identifies is whether Cortez-Cruz could
argue that he should have received a lower prison sentence. Because the term falls
within the properly calculated guidelines range, it is presumed reasonable, and
counsel says he cannot find any basis to rebut this presumption. See United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Although the Supreme Court
recently granted a writ of certiorari to consider whether it is consistent with United
States v. Booker, 543 U.S. 220 (2005), to afford a presumption of reasonableness to a
sentence within the guidelines range, see United States v. Rita, No. 05-4674, 2006
WL 1144508 (4th Cir. May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006)
(No. 06-5754), the resolution of that question would not affect our conclusion that
any challenge to the 57-month term imposed in this case would be frivolous. The
district court considered the relevant factors under 18 U.S.C. § 3553(a) and
identified those having a significant effect on the choice of sentence, see United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The court evaluated Cortez-
Cruz’s background, his family situation and work history, the seriousness of his
crime, and the need to protect the public. The court found that none of the factors
justified a sentence below the guidelines imprisonment range, but it imposed the
lowest possible term within the range because the total quantity of cocaine for
which Cortez-Cruz was responsible—551 grams—was near the bottom of the span
that determined his base offense level. See U.S.S.G. 2D1.1(c)(7) (establishing base
offense level of 26 for possession of more than 500 grams but less than two
kilograms of cocaine). We thus agree with counsel that it would be frivolous for
Cortez-Crus to argue that his sentence is unreasonable.
No. 06-2063 Page 3
For his part, Cortez-Cruz proposes to argue that “agents and the prosecutor”
promised him a “sentencing modification” in return for assistance he says he
provided after he was sentenced in an investigation of persons supplying illegal
“license[s] and documentation.” Under Federal Rule of Criminal Procedure 35(b),
the government may seek a reduction in sentence within one year of sentencing, but
to date no such motion has been filed in the district court, and the deadline for
Cortez-Cruz—who was sentenced on March 31, 2006—is rapidly approaching. Of
course, it would be frivolous for Cortez-Cruz to press this issue on direct appeal
because we would be unable to evaluate the merits of his assertions regarding
events that transpired after he was sentenced. If Cortez-Cruz wishes to pursue this
argument, he may file in the district court a post-judgment motion to compel the
government to file a Rule 35(b) motion on his behalf. Cf. United States v. Wilson,
390 F.3d 1003, 1004 (7th Cir. 2004).
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.