United States v. Camarena-Salazar , 276 F. App'x 509 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 March 4, 2008
Decided May 5, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
Nos. 07-1012 & 07-1013
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
Nos. 1:05CR00155-002 & 1:05CR00156-006
VICENTE CAMARENA-SALAZAR,
Defendant-Appellant. Larry J. McKinney,
Judge.
ORDER
Vicente Camarena-Salazar pleaded guilty to separate indictments charging him with
conspiracy to distribute cocaine and methamphetamine, respectively. See 21 U.S.C. §§ 846,
841(a)(1). The facts underlying the cocaine charge are set out in a separate opinion. See United
States v. Soto-Piedra , No. 07-1339, (7th Cir. May 5, 2008). As for the methamphetamine charge,
Camarena’s role in that conspiracy ended when police in Indianapolis, Indiana, stopped his car
and found 262 grams of methamphetamine.
Nos. 07-1012 & 07-1013 Page 2
Camarena was sentenced in both cases in December 2006. In the methamphetamine case
the parties stipulated to a base offense level of 34 and a recommendation for a prison sentence at
the bottom of the guidelines range. But Camarena did not have a plea agreement in the cocaine
case. The probation officer calculated Camarena’s total offense level for the combined cases as 40,
which inclu ded a base offense level of 38 (after converting both the cocaine and
methamphetamine to the equivalent of 311,048 kilograms of marijuana). See U.S.S.G. §
2D1.1(c)(1). The probation officer added four levels for Camarena’s role as a leader or organizer,
see id. § 3B1.1(a), and subtracted two levels for acceptance of responsibility, see id. § 3E1.1. The
resulting imprisonment range was 292 to 365 months.
At sentencing Camarena acknowledged that he had reviewed the presentence report with
his attorney, who is fluent in Spanish. Camarena told the district court that he did not dispute
the probation officer’s guidelines calculations and had nothing he wanted to bring to the court’s
attention. Counsel then focused his allocution on Camarena’s wasted life and remorse. The
district court sentenced Camarena to 292 months’ imprisonment in each case, the terms to run
concurrently. The court imposed these sentences after considering the factors enumerated in
18 U.S.C. § 3553(a), including the nature and circumstances of the offense, Camarena’s history
and characteristics, the need to promote respect for the law, and the need to provide just
punishment.
Camarena has appealed both judgments, but his appointed lawyer is unable to discern a
nonfrivolous basis for either appeal and moves to withdraw. See Anders v. California , 386 U.S. 738(1967). Camarena has not accepted our invitation to comment on counsel’s submission. See CIR.
R. 51(b). Our review is limited 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). Because both of the potential
issues counsel identifies would be frivolous, we grant counsel’s motion to withdraw and dismiss
Camarena’s appeals.
Counsel first considers whether Camarena could challenge the drug quantity used in
assigning his base offense level since, according to counsel, the district court failed to make an
explicit finding about the amount of cocaine for which Camarena was responsible. Counsel
correctly notes, however, that Camaren a waived this potential argument by expressly declining
to challenge the probation officer’s calculations when the sentencing court invited objections.
“‘Waiver occurs when a criminal defendant intentionally relinquishes a known right.’” United
States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007) (quoting United States v. Haddad, 462 F.3d 783,
793 (7th Cir. 2006)). And even if Camarena had objected, it would not have helped him. The
probation officer calculated a conversion in the presentence report that the district court adopted.
We have noted many times that when a district court adopts a presen tence report it discharges
its obligation to make factual findings. United States v. Brumfield, 301 F.3d 724, 735 (7th Cir. 2002)
(collecting cases).
Nos. 07-1012 & 07-1013 Page 3
The only other possible argument identified by counsel is whether Camarena’s prison
sentences are unreasonable in light of the § 3553(a) factors. Camarena was sentenced at the
bottom of the guidelines range in both cases. We review sentences for reasonableness, see United
States v. Dale, 498 F.3d 604, 608 (7th Cir. 2007), and will presume that any sentence within a
properly calculated guidelines range is reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Mykytiuk , 415 F.3d 606, 608 (7th Cir. 2005). Here, the guidelines range
was properly calculated, and counsel is unable to identify anything in this case that might rebut
that presumption. Therefore any potential challenge to the reasonableness of the sentences would
be frivolous.
We therefore GRANT counsel’s motion to withdraw and DISMISS Camarena’s appeals.