United States v. Ornelas-Hernandez, J , 180 F. App'x 594 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2006
Decided May 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-4159
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 04-CR-195
JUAN ORNELAS-HERNANDEZ,
Defendant-Appellant. Charles N. Clevert, Jr.,
Judge.
ORDER
Juan Ornelas-Hernandez pleaded guilty to one count of cocaine distribution,
21 U.S.C. § 841(a)(1). He asked the district court to impose a sentence below the
guidelines range of 57 to 71 months in prison, arguing that his placement in
Criminal History Category III overstated the seriousness of his single past offense.
See U.S.S.G. § 4A.1.3(b)(1). The sentencing court imposed the statutory mandatory
minimum sentence of 60 months’ incarceration. 21 U.S.C. § 841(b)(1)(A). Ornelas-
Hernandez filed a timely notice of appeal, but his appointed counsel informs us that
he cannot discern a nonfrivolous basis for the appeal and moves to withdraw. See
Anders v. California, 386 U.S. 738 (1967). Because counsel’s brief is facially
adequate and Ornelas-Hernandez has not filed a Circuit Rule 51(b) response to his
No. 05-4159 Page 2
attorney’s motion, we will review only the potential issues that counsel has
identified. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
We have no indication that Ornelas-Hernandez wishes to have his guilty plea
vacated, so counsel appropriately avoids any discussion about the voluntariness of
the plea or the adequacy of the colloquy. See United States v. Knox, 287 F.3d 667,
670-71 (7th Cir. 2002). Counsel considers only an argument that the district court
erred by not granting a sentence below the 60-month mandatory minimum. Such
an argument would be frivolous, counsel concludes, because Ornelas-Hernandez did
not qualify for either of the provisions that would otherwise allow for a below-
minimum sentence. See 18 U.S.C. § 3553(e), (f)(1). We concur. Those are the only
provisions that allow district courts to impose a sentence below a statutory
minimum. United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003). A
sentencing reduction under § 3553(e) is only possible upon the government’s motion,
which it did not make here. See United States v. McMutuary, 217 F.3d 477, 487
(7th Cir. 2000). And despite his contention before the sentencing court that his
criminal history score overstates the seriousness of his past conviction, it would be
frivolous to argue on appeal that Ornelas-Hernandez was eligible for the safety-
valve provision of § 3553(f). That is because “the statutory question is how many
points the defendant had accumulated, not how serious the crimes were.” United
States v. Cannon, 429 F.3d 1158, 1161 (7th Cir. 2005). Counsel also recognizes that
United States v. Booker, 543 U.S. 220 (2005), has not given district courts authority
to impose sentences below a statutory minimum. See United States v. Lee, 399 F.3d
864, 866 (7th Cir. 2005). We agree with counsel that it would be frivolous to appeal
based on any of the potential issues he identifies.
We GRANT the motion to withdraw and DISMISS this appeal.