United States v. Rios, Hector , 224 F. App'x 529 ( 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NONPRECEDENTIAL DISPOSITION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 May 16, 2007
Decided May 16, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3402
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division
v. No. 05 CR 385
HECTOR RIOS, James F. Holderman,
Defendant-Appellant. Chief Judge.
ORDER
Hector Rios pleaded guilty in a written agreement to distributing 53.4 grams
of crack cocaine. See 21 U.S.C. § 841(a)(1). The presentence report concluded that
Rios had distributed an additional 851 grams of crack. The district court accepted
this finding, calculated Rios’s guidelines imprisonment range at 151 to 188 months,
and then sentenced him to 151 months. Rios filed a notice of appeal, but his
appointed lawyers now move to withdraw under Anders v. California, 386 U.S. 738(1967), because they are unable to discern a nonfrivolous argument for appeal.
Their brief is facially adequate, and Rios has not responded to our invitation under
Circuit Rule 51(b) to comment on counsel’s submission. We therefore review only
the potential issues that his lawyers have identified. See United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997)(per curiam).
No. 06-3402 Page 2
His lawyers first consider whether there are any nonfrivolous issues to be
raised regarding Rios’s conviction. But they correctly note that “an unconditional
guilty plea waives all non-jurisdictional defects occurring prior to the plea,” United
States v. Villegas, 388 F.3d 317, 322 (7th Cir. 2004) (internal quotations and
citation omitted). Accordingly the only issue with regard to the conviction that
could be raised on appeal would be whether Rios knowingly and voluntarily entered
the plea. But the attorneys represent that Rios does not wish to set his plea aside,
and they therefore appropriately avoid any discussion about the adequacy of the
plea colloquy or the voluntariness of his plea. See United States v. Knox, 287 F.3d
667, 671 (7th Cir. 2002).
Rios’s lawyers next consider whether he could challenge his sentence as
unreasonable. They recognize, however, that a sentence like Rios’s which falls
within a properly calculated guidelines range is presumed reasonable. See United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). They note that the Supreme
Court has recently granted a writ of certiorari to consider whether affording a
presumption of reasonableness to a sentence within the guidelines range is
consistent with United States v. Booker, 543 U.S. 220 (2005), see United States v.
Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75
U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754), but conclude that even if the
presumption did not apply, any challenge to the reasonableness of Rios’s sentence
would be frivolous. The attorneys conclude that the district court considered the
factors in 18 U.S.C. § 3553(a), and “Rios did not present a compelling reason for a
below-the[-]guideline sentence.” (Appellant’s Brief at 17.)
We agree with counsel’s analysis. A sentencing court need not recite the
§ 3553(a) factors in a “checklist fashion.” United States v. Farris, 448 F.3d 965, 969
(7th Cir. 2006) (internal quotations and citation omitted). “It is enough that the
record confirms that the judge has given meaningful consideration to the
section 3553(a) factors.” United States v. Williams, 425 F.3d 478, 480 (7th Cir.
2005). The sentencing court here meaningfully considered the § 3553(a) factors
before deciding that a sentence at the low end of the guidelines range was
appropriate. For instance, the court considered Rios’s personal history and
characteristics, 18 U.S.C. § 3553(a)(1), noting that he did not have a lengthy
criminal history and had “never been incarcerated.” However, the court also
considered the seriousness of Rios’s offense, id. at § 3353(a)(2)(A); the need to deter
criminal conduct, id. at § 3553(a)(2)(B); and the need to protect the public, id. at
§ 3553(a)(2)(C): “the only way that we can protect the public from further crimes
and provide an adequate deterrence and appropriately reflect the seriousness of this
type of an offense on society” is to evaluate each case independently under
§ 3553(a), which for Rios dictated “a substantial amount of time.” (R. 46-4 at 38-39.)
No. 06-3402 Page 3
And sentencing courts need consider only serious arguments for imposing a
sentence below the guidelines. See United States v. Gama-Gonzalez, 469 F.3d 1109,
1111 (7th Cir. 2006). Rios argued that he should receive a below-guidelines
sentence because he is young (27 years old), blind in one eye, of “short stature,” and
has a supportive family to keep him out of trouble. None of these, however, are
compelling reasons for a below-guidelines sentence. After Booker, downward
departures are “obsolete.” United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.
2006) (internal quotations and citation omitted). But even pre-Booker decisions,
which continue to offer guidance, see id., generally did not recognize departures for
bases such as age, see U.S.S.G. § 5H1.1, p.s.; United States v. Mallon, 345 F.3d 943,
948 (7th Cir. 2003) (under guidelines age is not a basis for departure unless
defendant is “elderly and infirm”), blindness, see U.S.S.G. § 5H1.4, p.s.; United
States v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993) (legal blindness not
an “extraordinary physical impairment”), physical stature, see United States v.
Krilich, 257 F.3d 689, 693 (7th Cir. 2001) (“[p]hysical condition or appearance,
including physique, is not ordinarily relevant” in granting downward departure),
and family ties, see U.S.S.G. § 5H1.6, p.s.; United States v. Hernandez, 325 F.3d
811, 816 (7th Cir. 2003). Thus, as Rios’s attorneys conclude, any reasonableness
argument concerning his sentence would be frivolous.
Therefore, the motion to withdraw is GRANTED, and the appeal is
DISMISSED.