NONPRECEDENTIAL DISPOSITION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 11, 2012
Decided April 18, 2012
Before
JOEL L. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐2040
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 CR 1022‐1
ANTONIO RINCON,
Defendant‐Appellant. Amy J. St. Eve,
Judge.
O R D E R
Antonio Rincon pleaded guilty to conspiring to possess with intent to distribute and
to distributing cocaine, see
21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 210 months’
imprisonment, the bottom of the applicable guidelines range. After he filed a notice of
appeal, Rincon asked the district court to reconsider his sentence; the court denied the
motion based on lack of jurisdiction. Rincon’s appointed lawyer now seeks to withdraw
because he believes the appeal would be frivolous. See Anders v. California,
386 U.S. 738
(1967). Rincon has not filed a response. See CIR. R. 51(b). We confine our review 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).
No. 11‐2040 Page 2
Rincon does not want his guilty plea set aside, so counsel properly does not discuss
the validity of the guilty plea. See United States v. Knox,
287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel does consider whether Rincon could challenge the two‐level increase in
offense level he received for obstruction of justice, see U.S.S.G. § 3C1.1, for denying in his
plea petition that he had any previous convictions; in fact he had been convicted of a federal
drug crime in 1998 under an alias. But counsel correctly determines that this argument
would be frivolous. A defendant obstructs justice if he willfully provides materially false
information to a judge or probation officer. U.S.S.G. § 3C1.1 & cmt. n.4(F), (H); United States
v. Bedolla‐Zavala,
611 F.3d 392, 395 (7th Cir. 2010); United States v. Sharp,
436 F.3d 730, 737
(7th Cir. 2006). The district court found that Rincon willfully misrepresented his criminal
history because he “thought he could get away with it,” a credibility determination to which
we give special deference. See United States v. DeLeon,
603 F.3d 397, 403 (7th Cir. 2010). And
the misrepresentation was material because it affected his sentence: the 1998 conviction
increased Rincon’s criminal history (from category I to II), and the government said at
sentencing that the delay in discovering the prior conviction prevented it from filing an
information under
21 U.S.C. § 851 to increase Rincon’s sentence. See United States v. Stokes,
211 F.3d 1039, 1045–46 (7th Cir. 2000).
Counsel also considers but properly rejects as frivolous the argument that Rincon
should have received an acceptance‐of‐responsibility adjustment for pleading guilty and
giving the government a full account of his participation in the crime. When a defendant
has obstructed justice, as Rincon did, he is presumed not to have accepted responsibility for
his offense. U.S.S.G. § 3E1.1, cmt. n.4; United States v. Gonzalez‐Mendoza,
584 F.3d 726, 730–31
(7th Cir. 2009). And as the district judge noted, the circumstances here did not make his case
extraordinary.
Id.
Counsel next considers whether Rincon could challenge the district court’s decision
to deny the pro se motion to reconsider his sentence—a motion that he filed 13 days after
the court’s oral pronouncement of his sentence. The court rejected the motion five days
later, explaining that Rincon’s filing of his notice of appeal had divested it of jurisdiction.
Counsel says that the court’s dismissal for lack of jurisdiction is correct, but adds that
Rincon’s motion should have been construed as one under Federal Criminal Procedure Rule
35(a), which authorizes a court within 14 days after sentencing to correct a sentence based
on a technical or clear error. We agree with counsel that any challenge to the court’s ruling
would be frivolous. To the extent that Rincon’s motion arose under Rule 35(a), the district
court lost jurisdiction to rule on the motion once the 14‐day deadline passed. See FED. R.
APP. P. 4(b)(5); United States v. Wisch,
275 F.3d 620, 626 (7th Cir. 2001); United States v.
Madrid,
633 F.3d 1222, 1226 (10th Cir. 2011); United States v. Miller,
594 F.3d 172, 177, 182 (3d
Cir. 2010). And to the extent that the motion sought merely reconsideration, the court was
No. 11‐2040 Page 3
right that Rincon’s filing of a notice of appeal divested it of jurisdiction. See Griggs v.
Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982); United States v. McHugh,
528 F.3d
538, 540 (7th Cir. 2008).
Counsel lastly considers whether Rincon could argue that his prison sentence was
unreasonable. Rincon’s sentence is at the bottom of his 210 to 262 month range (based on an
offense level of 36 and a criminal history category of II) and so it is entitled to a
presumption of reasonableness. See Rita v. United States,
551 U.S. 338, 347 (2007); United
States v. Pape,
601 F.3d 743, 746 (7th Cir. 2010). Counsel has not identified any reason to set
aside that presumption, nor can we. The district court meaningfully addressed the factors in
18 U.S.C. § 3553(a), including the need to deter him and others from selling cocaine, and to
protect the public.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
