United States v. Tenorio-Tapia, Agust , 275 F. App'x 539 ( 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NONPRECEDENTIAL DISPOSITION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 April 28, 2008∗
Decided April 28, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 06-4094
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Southern District of Illinois.
v. No. 06 CR 40017
J. Phil Gilbert, Judge.
AGUSTIN TENORIO-TAPIA, also known as
MAURO AGUSTIN TENORIO-TAPIA,
Defendant-Appellant.
Order
Agustin Tenorio-Tapia pleaded guilty to reentering the United States without
permission, following his removal, in violation of 8 U.S.C. §1326. He contends on appeal
that his sentence of 41 months’ imprisonment is excessive because the district court
miscalculated his offense level.
∗ After an examination of the briefs and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-4094 Page 2
As part of a plea agreement, Tenorio-Tapia waived the right to appeal his
sentence unless “the sentence imposed is in excess of the Sentencing Guidelines (as
determined by the Court (or any applicable statutory minimum [sic], whichever is
greater)”. In exchange for this concession the prosecutor asked the district judge to give
Tenorio-Tapia a sentence at the low end of the range, which the judge did. (The range
calculated by the presentence report, which was adopted by the district judge, is 41 to
51 months.)
Tenorio-Tapia’s brief on appeal ignores his waiver. The United States filed a brief
invoking the waiver and asking us to dismiss the appeal. Tenorio-Tapia did not file a
reply brief, and we cannot see how the appeal can be reconciled with the waiver.
Accordingly, the appeal is dismissed on the basis of Tenorio-Tapia's waiver.