United States v. Ezequel Hernandez-Pa , 488 F. App'x 157 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 September 24, 2012
Decided January 7, 2013
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-3207
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 1:09-cr-00546-4
EZEQUEL HERNANDEZ-PATINO,
Defendant-Appellant. William J. Hibbler,
Judge.
ORDER
Ezequel Hernandez-Patino belonged to a drug trafficking organization investigated by
the DEA. He pleaded guilty to conspiring to distribute five kilograms or more of cocaine in
violation of 18 U.S.C. § 846. In his plea agreement with the Government, Hernandez-Patino
was held accountable for at least 150 kilograms of cocaine, placing him at a base offense level
of 38 pursuant to U.S.S.G. §§ 2D1.1(a)(5) and 2D1.1(c)(1). Hernandez-Patino agreed that his
No. 11-3207 Page 2
base offense level would be increased two levels under U.S.S.G. § 2D1.1(b)12 for maintaining
a premises for the purpose of distributing a controlled substance, and that he fell in Criminal
History Category III. The district court calculated a Guidelines imprisonment range of 262 to
327 months, the same range anticipated by the plea agreement, and sentenced Hernandez-
Patino to 264 months’ imprisonment and five years of supervised release.
Hernandez-Patino filed a notice of appeal, but his attorney has filed an Anders brief
and moved to withdraw, asserting that Hernandez-Patino’s appeal presents no nonfrivolous
issues. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Hernandez-
Patino did not respond to the motion. See Cir. R. 51(b). We thus confine our review to the
potential issues identified in counsel’s facially adequate brief. United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002) (citation omitted); United States v. Tabb, 125 F.3d 583, 584 (7th Cir.
1997).
According to counsel, Hernandez-Patino does not want his guilty plea set aside, so
counsel appropriately omits from his brief any discussion about the adequacy of the plea
colloquy or the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002).
Hernandez-Patino’s counsel next evaluates potential challenges to Hernandez-Patino’s
sentence but properly concludes that the possible arguments would be frivolous. Counsel first
considers whether Hernandez-Patino could challenge the Sentencing Guidelines calculation,
but concludes that he has waived any possible argument on appeal to this effect because the
district court adopted the calculation Hernandez-Patino specifically agreed to in his plea
agreement. See United States v. Fiore, 178 F.3d 917, 925 (7th Cir. 1999); United States v. Martinez,
122 F.3d 421, 423 (7th Cir. 1997).
Counsel also considers whether Hernandez-Patino could challenge his sentence as
procedurally unsound. He concludes that such an argument would be frivolous because the
district court did not indicate a belief that the Guidelines were mandatory or rely on clearly
erroneous facts. We agree.
Finally, Hernandez-Patino’s counsel considers whether Hernandez-Patino could challenge
his prison term as unreasonable, but concludes that such a challenge would be frivolous. The
term is presumed reasonable because it was within the Guidelines range, see Rita v. United
States, 551 U.S. 338, 347, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007); United States v. Miranda, 505 F.3d
785, 791 (7th Cir. 2007), and counsel has not identified any reason to set aside that
presumption. Our review of the record confirms the adequacy of the district court’s
No. 11-3207 Page 3
discussion of the § 3553(a) factors and Hernandez-Patino’s arguments in mitigation,
including his efforts to cooperate with the Government. The district court reasonably
concluded that his history in the drug trade and the large quantities he was involved
with merited a term within the guidelines range.
The motion to withdraw is GRANTED and the appeal is DISMISSED.