United States v. Cortez-Mendez, C. , 162 F. App'x 610 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 4, 2006
Decided January 5, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-3178
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 04-30063-001
CARLOS CORTEZ-MENDEZ, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
Carlos Cortez-Mendez was removed from the United States following his
Illinois conviction for possession of a controlled substance with intent to deliver. He
returned to the United States illegally, and the state returned him to prison for
violating his parole. Federal authorities discovered Cortez-Mendez in Logan
Correctional Center and charged him with being present in the United States
without permission after his removal. See 8 U.S.C. § 1326(a). Cortez-Mendez
pleaded guilty to the charge, and the district court sentenced him to 46 months’
imprisonment, three years’ supervised release, and a $100 special assessment.
Appointed counsel filed a notice of appeal but now moves to withdraw because he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). Cortez-Mendez accepted our invitation to respond to his lawyer’s
No. 05-3178 Page 2
Anders brief, see Cir. R. 51(b), but presents no potential arguments, so we limit our
review to those identified by counsel. See United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997).
In his brief, counsel first advises that Cortez-Mendez does not want his guilty
plea set aside. Thus counsel correctly avoids framing any potential issue about the
voluntariness of the plea or the adequacy of the plea colloquy. See United States v.
Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel then considers whether Cortez-Mendez could now argue that his
offense level was improperly increased by 16 levels when the court determined that
his Illinois conviction for possession of a controlled substance with intent to deliver
constitutes a “drug trafficking offense.” See U.S.S.G. § 2L1.2(b)(1)(A)(I). Any
challenge to the increased offense level would be reviewed for plain error because
Cortez-Mendez did not raise this objection in the district court. See United States v.
Jaimes-Jaimes, 406 F.3d 845, 848-49 (7th Cir. 2005). The guidelines define “drug
trafficking offense” for purposes of § 2L1.2(b)(1) as “an offense under federal, state,
or local law that prohibits the . . . possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or
dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv); United States v. Palacio-Quinonez,
No. 05-10323, 2005 WL 3160279, at *2 (5th Cir. Nov. 29, 2005). This definition is
enough to render frivolous any contention that Cortez-Mendez’s prior drug
conviction is not a “drug trafficking offense.”
Counsel also evaluates whether Cortez-Mendez might argue that his prison
sentence is unreasonable. We have held that a sentence within a properly
calculated guideline range is presumptively reasonable, United States v. Paulus,
419 F.3d 693, 700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005), so Cortez-Mendez would have to persuade us that the presumption falls
away in this case. Counsel proposes two reasons why the presumption should give
way but rejects both as frivolous. We take them in turn.
First, counsel explores whether Cortez-Mendez could argue that his prison
term is unreasonable because the government’s three-month delay in bringing the
§ 1326(a) charge effectively kept him from requesting that his federal sentence run
concurrently with his state time. The district judge considered and rejected this
argument, reasoning that the delay was not inordinate. We would agree, though
the characterization does not matter; preindictment delay is significant only if it
impairs a defendant’s right to a fair trial, see United States v. Marion, 404 U.S. 307,
324-25 (1971); United States v. Miner, 127 F.3d 610, 615 (7th Cir. 1997), and Cortez-
Mendez has never contended that he suffered that kind of harm. We note, too, that
the district judge would not have been required to impose a concurrent sentence
No. 05-3178 Page 3
even if the charge had been brought sooner. See 18 U.S.C. § 3584(a); U.S.S.G. §
5G1.3 cmt. n.3(C).
Second, counsel explores whether Cortez-Mendez could argue that in his case
a prison term within the guideline range is unreasonable because, he says, he would
have received a sentence below the guideline minimum had he been prosecuted in a
jurisdiction that participates in the government’s “fast track” program for § 1326(a)
offenders. See, e.g., United States v. Morales-Chaires, No. 05-1190, 2005 WL
3307395 (10th Cir. Dec. 7, 2005). In rejecting this argument, the district court
correctly observed that the record includes no evidence that Cortez-Mendez would
have qualified for “fast track” consideration if it were available to him in the
Central District of Illinois. Moreover, even where the program is available, the
sentencing court has discretion to reject the government’s recommendation for a
reduced sentence. See U.S.S.G. § 5K3.1. In this case, the district court considered
the factors set forth in 18 U.S.C. § 3553 as well as Cortez-Mendez’s arguments for a
reduced sentence, noting that Cortez-Mendez’s credibility before the court was “not
good” because the court did not believe Cortez-Mendez’s assertion that he was
unaware he could not return to the United States without permission. Because a
judge is not obliged to accept arguments for imposing a discretionary sentence
below the guideline range, it would be frivolous for Cortez-Mendez to challenge the
reasonableness of his prison term on this record. See United States v. Gipson, 425
F.3d 335, 337 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED, and, given our agreement with
counsel that this appeal is frivolous, Cortez-Mendez’s motion for substitute counsel
is DENIED. The appeal is DISMISSED.