NONPRECEDENTIAL DISPOSITION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 15, 2012
Decided February 15, 2012
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐2250
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 11‐CR‐4‐WMC‐01
MANUEL JESUS William M. Conley,
ARGUIJO‐CERVANTES, Chief Judge.
Defendant‐Appellant.
O R D E R
Manuel Arguijo‐Cervantes, a Mexican citizen, has been removed from the United
States three times, most recently after he served a 42‐month sentence and assured a federal
judge that he would not return. He was arrested again in February 2011 and pleaded guilty
to illegal reentry by a previously removed alien. See
8 U.S.C. § 1326. The district court
calculated a guidelines range of 57 to 71 months’ imprisonment and sentenced him to 57
months. Arguijo‐Cervantes appeals, but his appointed lawyer asserts that this appeal is
frivolous and seeks to withdraw under Anders v. California,
386 U.S. 738, 744 (1967).
Arguijo‐Cervantes did not accept our invitation to address counsel’s motion. See CIR. R.
51(b). We confine our review to the potential issues that counsel identified in his facially
adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
No. 11‐2250 Page 2
Counsel first notes that Arguijo‐Cervantes entered into an unconditional guilty plea
and gave no indication that he wants to withdraw the plea. Counsel thus properly omits
discussion about the adequacy of the plea colloquy or the voluntariness of the guilty plea.
See United States v. Knox,
287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel next considers whether Arguijo‐Cervantes could argue that the district court
incorrectly calculated his criminal‐history score. Although the probation officer correctly
calculated Arguijo‐Cervantes’s criminal‐history category as IV in a section of the
presentence report entitled “Criminal History Computation,” given Arguijo‐Cervantes’s
nine criminal‐history points for three previous offenses, see U.S.S.G. ch. 5, pt. A (sentencing
table), the officer misstated the category as VI in other sections of the report relating to
“Sentencing Options” and “Combined Sentencing Recommendation.” Despite the
misstatement, the officer calculated the guidelines range of 57 to 71 months’ imprisonment,
based on an offense level of 21 and a criminal‐history score corresponding to the correct
catorgory, IV. See U.S.S.G. ch. 5, pt. A (sentencing table). As reflected in the sentencing
transcript, the district court repeated the probation officer’s misstatement at sentencing but
applied the correct criminal‐history score of IV and properly assessed the guidelines range
at 57 to 71 months. The court’s erroneous characterization of Arguijo‐Cervantes’s
criminal‐history category was harmless. See, e.g., United States v. Stott,
245 F.3d 890, 915 (7th
Cir. 2001) (misstatement of offense level).
Counsel finally considers whether Arguijo‐Cervantes might argue that his 57‐month
sentence is unreasonable but aptly rejects any such argument as frivolous.
Arguijo‐Cervantes’s sentence is at the bottom of his guidelines range and thus
presumptively reasonable, see Rita v. United States,
551 U.S. 338, 350–51 (2007); United States
v. Barnes,
660 F.3d 1000, 1010 (7th Cir. 2011), and counsel identifies no reason to disturb that
presumption. The district court properly applied the factors listed in
18 U.S.C. § 3553(a),
discussing Arguijo‐Cervantes’s long history of drug sales and illegal reentry, as well as his
family ties to the United States, see
18 U.S.C. § 3553(a)(1), and noting the importance of
deterrence, especially given his recent promise to a federal judge that he would not return to
the United States after his deportation in 2010, only to return again a few weeks later, see
id.
§ 3553(a)(2)(B); United States v. Perez‐Molina,
627 F.3d 1049, 1051 (7th Cir. 2010). The court
appropriately found that these considerations outweighed Arguijo‐Cervantes’s request for a
below‐range sentence to account for family ties being the principal motivation for his
return.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
